Great Bri tain in re Russian Dutch Loan. not be done a private man lends money to a Prince upon the faith of an engagement of honour, because a Prince cannot be compelled, like other men, in an adverse way by a Court of Justice. So scrupulously did England, France, and Spain, adhere to this public faith, that even during the war they suffered no inquiry to be made, whether any part of the public debts was due to the subjects of the enemy, though it is certain many English had money in the French Funds, and many French had money in ours." Vattel, writing almost immediately after the publication of the British Reply, says, "The State does not so much as touch the sums which it owes to the Enemy: money lent to the Public is everywhere exempt from confiscation and seizure in time of war." It is obvious that it would be contrary to natural justice for a State to reap the benefit of a loan, of which it retains possession, and at the same time to refuse to pay the equivalent for that benefit, which it pledged its faith to pay when it accepted the benefit. It is not like the case in which a State has undertaken to grant a favour to the subject of a friendly Power, the continued enjoyment of which may be reasonably taken to be conditional on the continuance of friendship between the two States. Conduct of The payment of a moiety of the Russian-Dutch Loan is an instance of an obligation undertaken by Great gard to the Britain for a permanent equivalent, in consideration of Holland agreeing that Great Britain should retain certain Dutch colonies and dependencies, of which Great Britain was in possession at the conclusion of the war in 1814. Great Britain took upon herself the obligation of a moiety of a certain loan made by Hol 57 L. III. ch. 5. § 77. L'Etat ne touche par même aux sommes qu'il doit aux Ennemis; partout les fonds confiés au public sont exempts de confiscation et de saisie en cas de Guerre. land to Russia during the war. It was recited in the fifth Article of the Convention of London 58, (19 May 1815), that "it was understood and agreed between the high contracting parties, (Great Britain, the Netherlands, and Russia,) that the payments on the part of the King of the Netherlands and the King of Great Britain should cease and determine, (such payments being payments of an annual interest of five per cent, together with a sinking fund of one per cent,) if the possession and sovereignty of the Belgic Provinces should at any time pass or be severed from the dominions of the King of the Netherlands at any time before the complete liquidation of the same: and that it was also understood and agreed between the high contracting parties, that the payments on the part of their Majesties the King of the Netherlands and the King of Great Britain, as aforesaid, should not be interrupted in the event of a war breaking out between any of the three high contracting parties; the Government of his Majesty the Emperor of All the Russias being actually bound to his creditors by a similar agreement." Upon the separation of the Belgic Provinces from the Kingdom of Holland in 1831, Great Britain entered into a new Convention with Russia, conceiving that though the event had happened, which, according to the letter of the Convention of 1815, released Great Britain as well as Holland from the obligation of continuing to pay off her portion of the loan, Great Britain was still bound, according to the spirit of that Convention, which was made on her part in consideration of the general arrangements of the Congress of Vienna, to adhere to her engagements. A new Convention between Russia and Embargo of enemy Great Britain was accordingly executed, (London, 16 Nov. 183159,) whereby the King of Great Britain undertook to recommend to the British Parliament to enable him to continue the payments stipulated in the Convention of the 19th of May, 1815, conformably to the manner, and until the liquidation. of the sum therein specified. Notwithstanding that open war arose between Great Britain and Russia in 1854, Great Britain never faltered in her good faith in the matter of the understanding between herself and the other two Powers, as set out in the fifth Article of the Convention; and the interest and instalments of the loan have been regularly voted without the slightest interruption by the British Parliament, and paid by the British Government to the agents of the Russian Government. Further, when a motion was made by Lord Dudley Stuart in the House of Commons in the month of August 1854, during the war with Russia, that Great Britain should renounce her obligation to make any further payments of the loan, upon the ground that Russia had violated the general arrangements of the Congress of Vienna, the motion was rejected on this, amongst other grounds, that "Great Britain being at war with Russia, was bound, by a regard to National Honour, to be more than ever jealous of affording the slightest ground for the accusation, that she wished to repudiate debts justly contracted with the Power which was for the time her Enemy." be $59. The practice of seizing and confiscating the property vessels and vessels and cargoes of Enemy-Subjects which may afloat with within the ports of a belligerent at the commenceports of a ment of war, is a tradition of the Admiralty jurisdiction exercised in common by Nations over all ves in the belligerent. 59 Martens, N. R. IX. p. 542. Hertslet, IV. p. 367. . sels and their cargoes which may be in creeks, or havens accessible to tidal waters. Mr. Justice Story, in discussing the right of confiscating enemy-property, distinguishes between property which may be water-borne, and property which is on the land, and inclines to hold that, whilst the former may be proceeded against as prize under the Admiralty jurisdiction, the latter, if liable to seizure and condemnation at all in the Courts of the belligerent Power, would have to be proceeded against in the manner applicable to Municipal confiscations 60. It would seem that the Admiralty, which is an Institution of the Law of Nations, exercises an original jurisdiction, exclusively of every other Judicature in matters of prize; and that the Admiralty has from time immemorial exercised its prize jurisdiction over vessels and their cargoes which are afloat in ports. and harbours, equally as over those which may be on the High Seas; and that Municipal Courts, as such, cannot enquire into a question of prize or no prize, which has been decided by the Admiralty". By the Law of Nations property, which is afloat on tidal waters within a port or harbour, is not subject to the Municipal Law of a State in the same exclusive manner, as property which is upon the land. Being therefore not subject to the exclusive control of the Sovereign of the territory, it is not within his protection in the same absolute manner as property on the land; and Nations have not been accustomed to regard it as an act of bad faith, if a belligerent Sovereign at the commencement of war should have seized all enemy-vessels which were afloat within his ports. This distinction between the concurrent jurisdiction, 60 Brown v. the United States, 8 Cranch, 139. Conduct of the Allied Powers at the com mencement against 1854. which all Nations exercise over vessels and cargoes which are afloat within the flux and reflux of the tide, and the exclusive jurisdiction which each individual Nation exercises over all persons and things which have been landed on its soil, may serve to explain in some respects the difference in the treatment, which enemy-property afloat has in practice undergone at the commencement of war, as contrasted with enemyproperty which has been landed and remains on land. The circumstance that the cognisance of all seizures of vessels and their cargoes when afloat, as prize of war, belongs to the Admiralty jurisdiction, is evidence of the high antiquity of the practice of such seizures. The maintenance of this practice is becoming more open to question, as being scarcely reconcilable with that good faith upon which the enlarged commercial intercourse of Nations proceeds. § 60. We find, accordingly, that the Queen of Great Britain, upon the breaking out of war with Russia in 1854, in ordering an Embargo to be laid of the war upon all Russian vessels that should thereafter enter Russia in any British port, harbour, or roadstead, being desirous to lessen as much as possible the evils of war, directed by an Order of the same date 62, "that Russian merchant vessels, in any ports or places within her Majesty's dominions, should be allowed six weeks for loading their cargoes and departing from such ports and places; and further, should not be molested, if met at sea by any British cruiser." Great Britain went even further in moderating the exercise of belligerent Right, by directing that "any Russian vessel which should have sailed from a foreign port, prior to the date of her Majesty's Order, bound to any second supplement to the London Gazette of 29 March 1854. 62 Orders in Council of 29 March 1854, published in the |