"the said ship and goods shall be adjudged lawful prize.'— "A similar article occurs in the Proclamation of 1672. I between particular ships sailing upon their risques and adventures and between ships of the state and those which pass the sea under their flag and protection. That their high and mighty lords were of an opinion that it does strengthen the security of this state, that the ships of the state and officers should be responsible, as it were, for the ships sailing under their convoy; and that which I had proposed in my last memorandum concerning the same on behalf of their high and mighty lords was no new thing, but that plan had been most commonly proposed on all the treaties since the year 1581, in that manner that without regulating the same according to the said articles, the troubles at sea, whereof I had so often complained, could not be removed and prevented, and I alleged several examples. Upon which now one then the other of the said three lords replied, and did very much insist, that it could not consist with their security; that they could not nor ought to trust so much to particular captains at sea; that it would be an introduction and encouragement to disaffected persons to assist the enemy, and urged especially that in no former treaties any such articles were found, and that their high and mighty lords had no reason to desire now any such novelty. said that the practice on this side in regard of searching and visiting ships without difference was a new thing, and that the inhabitants of the United Netherlands, feeling the trouble and inconveniency of it, had reason to insist that it may be rectified by a good regulation.'—Vol. vi. p. 511. See also, for the former conference, vol. v. p. 663. I "It appears that so many objections had arisen on the treaty proposed on the part of Holland, that it was found necessary to form an entirely new project.-Vol. v. pp. 523, 558. "In a subsequent letter from the Hague, 30th Nov. 1657, it appears that the treaty broke off on this difference: 'Le Sieur Nieuport n'est pas encore ici arrivé, mais il escrit aussi d'avoir prins son congé. Il est fort croyable qu'il ne sera guère content d'avoir faillé à achever le traité de la marine; néanmoins, je m'imagine que la Hollande à present ne seroit pas fort marry de ne l'avoir pas achevé, pour ne se pas oster la liberté de visiter des mêmes en cette guerre contre Portugal.''-Thurloe's St. Pap. vol. vi. p. 622. "On the subject of search generally, without any expressed reference to convoy, there is this letter from Cromwell to General Montagu : 'The secretary hath communicated to us your letter of the 28th, by which you acquaint him with the directions you have given for the * Thurloe, Wolsely, Jones. 66 am aware, that in those orders and proclamations are to be "found some articles not very consistent with the Law of "Nations as understood now, or indeed at that time; for they are expressly censured by Lord Clarendon (ƒ). But "the article I refer to is not of those he reprehends; and it "is observable that Sir Robert Wiseman, then the King's "Advocate General, who reported upon the articles in "1673, and expresses a disapprobation of some of them as "harsh and novel, does not mark this article with any "observation of censure. I am therefore warranted in say"ing, that it was the rule, and the undisputed rule, of the "British Admiralty. I will not say that that rule may not "have been broken in upon in some instances by considera"tions of comity or of policy, by which it may be fit that "the administration of this species of Law should be tempered in the hands of those tribunals which have a right "to entertain and apply them; for no man can deny that a "state may recede from its extreme rights, and that its "supreme councils are authorised to determine in what "cases it may be fit to do so, the particular captor having "in no case any other right and title than what the State "itself would possess under the same facts of capture. But "I stand with confidence upon all fair principles of reason, 66 upon the distinct authority of Vattel,-upon the Insti"tutes of other great maritime countries, as well as those of "our own country,-when I venture to lay it down, that by "the Law of Nations, as now understood, a deliberate and "continued resistance to Search, on the part of a neutral searching of a Flushing and other Dutch ships, which (as you are informed) have bullion and other goods aboard them belonging to the Spaniard, the declared enemy of this state. There is no question to be made but what you have directed therein is agreeable both to the laws of nations and the particular treaties which are between this commonwealth and the United Provinces, and therefore we desire you to continue the said direction, and to require the captains to be careful in doing their duty therein.-Hampton Court, 30th August, 1657.”” (f) Lord Clarendon's Life, p. 242. "vessel to a lawful cruiser, is followed by the legal con"sequence of confiscation" (g). This judgment was pronounced in a case where a vessel was sailing under convoy of an armed vessel for the purpose of resisting visitation and search; and Lord Stowell seems to have made no distinction between such a resistance and any other form of resistance to this right. CCCXXXIX. It should, however, be stated that this penalty of confiscation for resistance to Visitation and Search cannot be inflicted in cases where the neutral vessel had no reasonable grounds to be satisfied of the existence of the war-for it is this existence which founds the duties of Neutrality (h). Nor will the forcible resistance of the master of an enemy merchant vessel enure to the condemnation of neutral property laden on board of it. The attempt of the enemy master to save or rescue his vessel from the captor is the hostile act of a hostile person, and a perfectly legitimate attempt (i). CCCXL. On the other hand, if a neutral master attempt a rescue, or to withdraw himself from Search, he is guilty of a breach of duty; and if he effect this breach by a recurrence to force, the penal consequence will reach the property of his owner, and the whole property entrusted to his care. In such a case ship and cargo will be con demned (k). CCCXLI. What if a Neutral put his property on board an armed ship, which he must presume will be defended against the enemy? According to the opinion both of Stowell and Story-a Neutral who so acts betrays an intention to resist Visitation and Search, which he could not do by putting his property (g) The Maria, 1 Robinson's Adm. Rep. pp. 363-9. on board a merchantman-and so far he adheres to the Belligerent-he withdraws himself from the protection of Neutrality, and adopts another mode of defence: he relies on an enemy's force for protection, and he must for the time be considered as an enemy (1). 66 66 66 66 "If," says Mr. Justice Story, "for a moment it could be "admitted that a Neutral might lawfully ship goods in a "non-armed ship of an enemy, or might charter such a "ship, and navigate her with a neutral crew, these admis"sions would fall far short of succouring the claimant. "He must successfully contend for broader doctrines, for "doctrines which in my humble judgment are of infinitely more dangerous tendency than any which Schlegel and "Hübner, the champions of Neutrality, have yet advanced "into the field of maritime controversy. I cannot bring my mind to believe that a Neutral can charter an armed enemy ship, and victual and man her with an enemy crew (for though furnished directly by the owner, they are in "effect paid and supported by the charterer), with the "avowed knowledge and necessary intent that she should "resist every enemy; that he can take on board hostile "shipments on freight, commissions, and profits; that he "can stipulate expressly for the benefit and use of enemy "convoy, and navigate during the voyage under its guns " and protection; that he can be the entire projector and "conductor of the voyage, and co-operate in all the plans "of the owner to render resistance to Search secure and "effectual; and that yet, notwithstanding all this conduct, by the Law of Nations he may shelter his property from "confiscation, and claim the privileges of an inoffensive "Neutral. On the contrary, it seems to me that such "conduct is utterly irreconcilable with the good faith of a friend, and unites all the qualities of a most odious hostility. It wears the habiliments of Neutrality only 66 66 (1) The Fanny, 1 Dodson's Adm. Rep. p. 443. 66 "when the sword and the armour of an enemy become "useless for defence. If it be, as it undoubtedly is, a "violation of Neutrality to engage in the transport-service "of the enemy, or to carry his despatches even on a neutral 66 voyage, how much more so must it be to enlist all our own interests in his service, and hire his arms and his "crew in order to prevent the exercise of those rights "which, as Neutrals, we are bound to submit to. The "doctrine is founded in most perfect justice, that those who "adhere to an enemy connection shall share the fate of the enemy" (m). 66 It is true, however, that the Court was composed of four Judges, of whom Mr. Justice Story was one only, and that the other three dissented from his opinion, and, in a subsequent case, adhered to this dissent (n). So far, therefore, as the Prize Law of the United States of North America is concerned, it is competent to a Neutral to put goods on board an armed enemy's ship. But with respect to International Law, this case is different. Mr. Justice Story adhered to his opinion (o); and looking to his great reputation, it is hardly too much to say that his agreement with such an authority as Lord Stowell upon a question of this kind, does constitute a (m) The Nereide, 9 Cranch's (Amer.) Rep. p. 454. (n) In the case of the Atalanta, Chief Justice Marshall said: "On the first question the case does not essentially differ from that of the Nereide. It is unnecessary to repeat the reasoning on which that case was decided; the opinion then given by the three judges is retained by them. The principle of the Law of Nations, that the goods of a friend are safe in the bottom of an enemy, may be, and probably will be, changed, or so impaired as to leave no object to which it is applicable; but so long as the principle shall be acknowledged, this Court must reject constructions which render it totally inoperative."3 Wheaton's (Amer.) Rep. p. 415. (0) "I have been latterly engaged in drawing up my dissenting opinion in the case of The Nereide' (9 Cranch's Reports, p. 449), I have now completed it; and never in my whole life was I more entirely satisfied that the Court were wrong in their judgment."-Life of Story, vol. i. p. 256. |