66 "the conjunctive, yet that the resistance alone is sufficient (c). "He refers to the Spanish Ordinance, 1718, evidently copied from it, in which it is expressed in the disjunctive, "in case of resistance or combat.' And recent instances "are at hand and within view, in which it appears that "Spain continues to act upon this principle. The first "time in which it occurs to my notice on the inquiries I "have been able to make in the institutes of our own 66 country respecting matters of this nature, excepting what “occurs in the Black Book of the Admiralty (d), is in the "Order of Council, 1664, Article 12 (e), which directs, (c) "In some of the Treaties of France, this article is expressly inserted in the disjunctive. Treaty between France and the Duchy of Mecklenburg, art. 18, an. 1779. De Martens' Tr. vol. ii. p. 40, also between France and Hamburgh, an. 1769.” (d) "B. 7. Item se aucune nef ou vessel de la ditte flotte a congie et pouvoir de l'admiral de passer hors de la flotte entour aucun message ou autre besongne, s'ilz encontrent ou trouvent aucuns vesseaulx estranges sur la mer ou en ports des ennemys, adonques ceulx de nostre flotte doivent demander des maistres et gouverneurs de telz vesseaulx estrangers dont ilz sont et eulx bien examiner de leur charge ensemblement avecques leurs muniments et endentures, et s'il est trouve aucune chose de suspicion en telz vesseaulx que les biens sont aux ennemys, qui sont trouvez dedens les dits vesseaulx avec leurs maistres et gouverneurs ensemblement avecques les biens dedens icelle estants sauvement seront amenees devant l'admiral, et illecques s'il est trouve qu'ilz sont loyaulx marchants et amys sans suspicion de colerer, les biens seront a eulx redelivrees sans eulx rien dommager, autrement seront pris avec leurs biens et raensonnez comme la loy de mer veult et demande. "B. 8. Se aucunes de noz nefs ou vesseaulx encontrent sur la mer ou en ports aucuns autres vesseaulx, qui facent rebelletees ou defense encontre ceulx de noz nefs ou vesseaulx, adoncques bien lise a noz gents les autres comme ennemys assaillir et par forte mayn les prendre et amener entièrement, comme ilz les ont gaignez, devant l'admiral sans eulx piller ou endommager, illecques de prendre ce que loy et coustume de mer veult et demande," &c. (e) "During the struggle for naval superiority, which took place between the maritime states of Europe, about the middle of the seventeenth century, the pretension of resisting search by the protection of convoy was put forward with much caution, and apparently for the first time, by Christina, queen of Sweden, Aug. 16, 1653. Art. 4th, "That when any ship, met withal by the Royal Navy or "other ship commissionated, shall fight or make resistance, "They shall in all possible ways decline that they, or any of those that belong to them, be searched. For seeing they are only sent to prevent all inconvenience and clandestine dealings, it is expected that they may be believed, and suffered to pass and proceed on their course unmolested, with all such things as are under their care.'-It was restrained to neutral ports.-Art. 6th, And more especially, for certain reasons, it is our command, that our own men-of-war do chiefly, and in the beginning, steer their course to such ports as are neutral in the English and Dutch war, till we give any farther directions on that account. However, without any hindrance to our own subjects, that intend to carry on their own free trade to England and Holland without convoy.'-Thurloe's State Papers, vol. i. p. 424. "In 1655 it was taken up by Holland: "They have a design to hinder the Protector all visitation and search; and this by very strong and sufficient convoy; and by this means they will draw all trade to themselves and their ships.'-Ibid. vol. iv. p. 203. "In May, 1656, there happened an actual rencounter on this subject between a fleet of merchantmen from Cadiz (Spain being then at war with England), under the convoy of de Ruyter, with seven men of war, and the commodore of some English frigates. 'Antwerp.-We have certain news of the arrival of de Ruyter in Zealand from Cadiz, from whence he brought stores of plate, mostly belonging to merchants of this city; he was met withal at sea by some English frigates, but finding themselves too weak they let him go.'—Ibid. vol. iv. p. 740. See also the particular account of what passed, given by a Dutch officer to the States General: That upon de Ruyter declaring that there was not any thing on board belonging to the king of Spain, they parted.' Ibid. vol. iv. p. 730. It appears, however, that the arrival occasioned great triumph in Holland and Flanders, and that the fleet was deeply laden with silver for the king of Spain, and the service of his armies in Flanders. De Ruyter brought in his own ship, and others in his fleet, the sum of 20,000,000 (perhaps rials) of gold and silver, the greatest part for the king of Spain's use and the merchants of Brabant and Flanders.'—Ibid. vol. iv. pp. 732, 748. The 12th article of the Eng. Ord. of 1664 might perhaps be pointed against these pretensions. "In another letter in the same collection, 21st Sept. 1657, from Nieuport, the Dutch ambassador in England,- -we find the subject of convoy was strongly pressed at that time, and resisted on the part of this country 'respecting secret articles, concerning the visitation of ships which are convoyed under the flag of the state. I acquainted their Lordships, that of old all kings and states had made a difference "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. |