State. persons war with Russia, 1854-56. Exemption of neutral goods and neutral ships. market from the enemy's country either over land or by sea1" Then came the adoption by England and France of the principle "free ships free goods," the complete adhesion to the rule exempting neutral goods in enemy's vessels from confiscation, and the Order in Council of the 15th April, 1854, allowing all vessels under a neutral or friendly flag, to import into and to export from any port or place in her Majesty's dominions to any port or place not blockaded, all goods and merchandize, and any cargo not contraband of war or requiring a special permission; thus largely relaxing, nay almost entirely removing the old restrictions upon trade with the enemy, and allowing such trade indirectly and through the medium of a neutral flag. Nor are the rules and orders bearing upon the subject of the seizure of enemy's merchant shipping less remarkable for the liberal policy they have sanctioned. Thus by English and French orders bearing date the 24th, 28th and 29th of March respectively, protection was given to Russian vessels which had left Russian ports before the time fixed in the Order, and a delay of six weeks was granted such vessels to quit the ports of England and France, or where they had left the ports of Russia previous to the declaration of the war that they might enter and complete their cargoes; and by an order of the 15th April, 1854, the former one of the 29th of March was still farther extended. Not less liberal were the regulations published by Russia on the same subject, being in fact conceived in almost the same terms as those above described 2. 1 Times Newspaper, March 25th, 1854; and see as to this doctrine the Ionge Pieter, 4 C. Rob. 84. By the Russian Declaration issued upon the commencement of hostilities with Turkey it is among other things proclaimed that the subjects of neutral states may continue uninterrupted commercial intercourse with Russian Ports and Towns on condition that they observe the laws of the Empire and the principles of International Law. See London Gazette, June 3, 1877, and Times Newspaper, same date. 2 See them described at length in the second volume of Wheaton, pp. 534, 535, note (173), ed. 1863, by W. B. Laurence. See also State Papers, Vol. 60, 1864-70, p. 899, for a similar declaration by the Federal Council at Berlin on the outbreak of the Franco-German War, 1870. See equally liberal provisions in the Russian Declaration cited in the preceding note in §§ 1. and II. of war. by the Russia, 1854-56. debts. As regards Embargo the order of the 29th of March State declared that a general embargo or stop should be made Enemy's of all Russian ships or vessels whatever within any of her persons and proMajesty's dominions, together with all persons and effects perty, as on board except such as came under the special circum- affected stances of the exempting order of the 29th of March war with above specified. With reference to the confiscation of debts, the law of Great Britain has always pursued " a Embargo. policy of a liberal and wise character," holding that the right of the original creditor to sue for the recovery of a debt is not extinguished but only suspended by the war, reviving again when peace is restored. Whatever prerogative the Crown may have to confiscate debts due Confiscafrom individuals before the commencement of the war, it tion of has never adopted such a course of proceeding as to confiscate any debt due to an alien enemy from any of its subjects; "nor," as Lord Alvanley said in Furtado v. Rodgers, "is it very probable that such a course of proceeding will ever be adopted'."-And therefore when, some little time after the commencement of the civil war in America, by an act of the Confederate Congress of August 21, 1861, property of whatever nature save public stocks and securities held by an alien enemy was declared confiscated, Earl Russell, after appealing to the principle laid down by Mr Wheaton as being in direct opposition to such conduct, and pointing out the peculiar application of that principle to the case of a civil war between different parts of the confederation, during whose union the subjects of foreign states were invited and induced to settle in its various states without any ground for contemplating such a disruption, protested in the strongest language against an act as rare in modern practice, as it was grossly unjust and faithless in prin-ciple".] on Public In the investigation of the rules of the modern law of Judicial nations, particularly with regard to the extensive field of decisions maritime capture, the courts of the United States gene- Law. rally and freely refer to the decisions of the English courts. These latter courts are in the habit of taking 1 3 Bos. and Pull. 201. Ex parte Boussmaker, 13 Vesey 71. 2 Wheaton's Elements, Vol. II. Part IV. ch. 1. § 9 apud finem. 3 Parliamentary Papers, 1862. Corresp. relating to the Civil War, p. 108, State of war. Judicial decisions on Public Law. accurate and comprehensive views of general jurisprudence, and have been deservedly followed by those of the United States, on all the leading points of national law. The United States possess a series of judicial decisions made in England, and in their own country, in which the usages and the duties of nations are explained and declared with that depth of research, and that liberal and enlarged inquiry, which strengthen and embellish the conclusions of reason. They contain more intrinsic argument, more full and precise details, more accurate illustrations, and are of more authority, than the loose dicta of elementary writers. When those courts in the United States, which are charged with the administration of international law, have differed from the English adjudications, they must take the law from domestic sources; but such an alternative is rarely to be met with, and there is scarcely a decision in the English prize courts at Westminster, on any general question of public right, that has not received the express approbation and sanction of American national courts. "We have attained the rank of a great commercial nation (says Mr Chancellor Kent), and war, on our part, is carried on upon the same principles of maritime policy, which have directed the forces and animated the councils of the naval powers of Europe. When the United States formed a component part of the British empire, our prize law and theirs was the same; and after the revolution it continued to be the same, as far as it was adapted to our circumstances, and was not varied by the power which was capable of changing it." The great value of a series of judicial decisions, in prize cases, and on other questions depending on the law of nations, is, that they liquidate, and render certain and stable the loose general principles of that law, and show their application, and how they are understood in the country where the tribunals are sitting. They are, therefore, deservedly received with very great respect, and as presumptive, though not conclusive, evidence of the law in the given case. This was the language of the Supreme Court of the United States, so late as 1815', and the decisions of the English High Court of Admiralty, especially since the year 1798, have been consulted and uniformly respected by that court, as enlightened 19 Cranch, 198. decisions commentaries on the law of nations, and affording a vast Judicial variety of instructive precedents for the application of the on Public principles of that law. They have also this to recommend Law. them: that they are pre-eminently distinguished for sagacity, wisdom, and learning, as well as for the chaste and classical beauties of their composition. Many of the most important principles of public law have been brought into use, and received a practical application, and been reduced to legal precision, since the age of Grotius and Puffendorf; and it is acknowledged in the United States that resort must be had to the judicial decisions of the prize tribunals in Europe, as well as in their own country, for information and authority on a great many points, on which all the leading text-books have preserved a total silence. The complexity of modern commerce has swelled, beyond all bounds, the number and intricacy of questions upon national law, and particularly upon the very comprehensive head of maritime capture. The illegality and penal consequences of trade with the enemy; the illegality of carrying enemy's despatches, or of engaging in the coasting, fishing, or other privileged trade of the enemy; the illegality of transfer of property in transitu, between the neutral and belligerent; the rules which impress upon neutral property a hostile character, arising either from the domicil of the neutral owner, or his territorial possessions, or his connexion in a house in trade in the enemy's country, are all of them doctrines in the modern international law, which are either not to be found at all, or certainly not with any fulness of discussion, and power of argument, anywhere, but in the judicial investigations to which reference has been made, and which have given the highest authority and splendour to this branch of learning. CHAPTER V. OF THE VARIOUS KINDS OF PROPERTY LIABLE TO CAPTURE. Enemy, how ac quired. Ir becomes important, in a maritime war, to determine character with precision what relations and circumstances will impress a hostile character upon persons and property, and the modern international law of the commercial world is replete with refined and complicated distinctions on this subject. It is settled, that there may be a hostile character merely as to commercial purposes, and hostility may attach only to the person as a temporary enemy, or it may attach only to property of a particular description. This hostile character, in a commercial view, or one limited to certain intents and purposes only, will attach in consequence of having possessions in the territory of the enemy, or by maintaining a commercial establishment there, or by a personal residence, or by particular modes of traffic, as by sailing under the enemy's flag or passport. This hostile relation, growing out of particular circumstances, assumes, as valid, the distinction which has been taken between a permanent and a temporary alien enemy. A man is said to be permanently an alien enemy, when he owes a permanent allegiance to the adverse belligerent, and his hostility is commensurate in point of time with his country's quarrel. But he who does not owe a permanent allegiance to the enemy, is an enemy only during the existence and continuance of certain circumstances. A neutral, for instance, said Ch. J. Eyre', can be an alien enemy only with respect to his acts done under a local or temporary allegiance to a power at war, and, when his temporary allegiance determines, his hostile character determines also. 1 Sparenburg v. Bannatyre, 1 Bos. and Pull. 163. |