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CHAPTER III.

OF THE RIGHT OF CAPTURE.

THE right of capture may be considered in respect of: First, The right of search. Secondly, The right of detaining vessels and bringing them in for adjudication. Thirdly, The right of freight. Fourthly, The right of neutrals to costs and damages in case of detention without probable cause, and to compensation for any illegal violence, or other wrongful act, on the part of captors.

First, Of the right of search. Grotius has fallen into an important error respecting the correspondence of Queen Elizabeth and Henry 4 on this subject. He states, that after the peace of Vervins, while the war continued between England and Spain, the English sought permission to visit and search French vessels for the purpose of preventing the importation of contraband into Spain, which was refused, on the ground that they were seeking a pretext for the pillage of vessels and the obstruction of commerce (a). From the diplomatic history of the period, it appears, that a temporary exemption of French vessels from visitation and search was conceded by special favour of Queen Elizabeth to Henry 4, on condition, that they should not supply corn to the Spanish forces. But the mischief, that arose from that concession in consequence of the supply of corn in breach of the condition, and of the assumption of the French flag by Spanish vessels, soon led to its revocation, and a subsequent proposal to em

(a) Grot. iii. 1, v. (n).

body it in the articles of the treaty of 1602 was peremptorily rejected (b).

Every vessel is bound to submit to visitation and search, whether it be the vessel of a friend or of an ally, or even of a subject; and submission may be compelled, if necessary, by force of arms without giving claim to compensation for any damages incurred thereby; if the vessel upon visitation should not be found liable to be detained. No circumstances can dispense with this obligation. A vessel is not exempted either by its built, or by its flag; such circumstances furnish no proof of the national character of the vessel; and if a vessel be neutral, a belligerent is entitled to ascertain, whether there is either enemy's property or contraband of war on board. If the master of a vessel resists search by force, that is a ground of confiscation (c). The French Ordinances of 1584 and 1681, expressly provide that every vessel shall be good prize in case of resistance and combat. The same penalty is provided by the Spanish Ordinance of 1718, in case of resistance or combat; and Valin is of opinion, that the word "and" in the French Ordinance is to be read "or" (d).

The right of visiting and searching merchant ships on the high seas, whatever be the ships, whatever be the cargoes, whatever be the destinations, is an incontestable right of the lawfully commissioned cruisers of a belligerent nation. Till they are visited and searched, it does not appear what the ships, or the cargoes, or the destinations are; and it is for the purpose of ascertaining these points, that the necessity of this right of visitation and search exists. This right is so clear in principle, that no man can deny it, who admits the legality of maritime capture, because if you are not at liberty to ascertain by sufficient inquiry, whether there is property that can be legally captured, it is impossible to capture. Even those who

(b) Winwood's Mem. i. 19, 22; Rob. Coll. Mar. 49.

(c) Val. Comm. iii. 9, xii.; Tr. des Pr. iv. 1; The Topaz, 2 Acton, 20. (d) D'Abreu, vii. § 4, p. 91; Val. Tr. v. 8, § 6.

contend for the inadmissible rule, that free ships make free goods, must admit the exercise of this right, at least, for the purpose of ascertaining whether the ships are free ships or not. The right is equally clear in practice; for practice is uniform and universal upon the subject. The many European treaties which refer to this right, refer to it as pre-existing, and merely regulate the exercise of it. All writers upon the law of nations unanimously acknowledge it, without the exception even of Hubner himself, the great champion of neutral privileges. In short, no man in the least degree conversant with subjects of this kind has ever breathed a doubt upon it. The right must unquestionably be exercised with as little of personal harshness and of vexation in the mode as possible; but soften it as much as you can, it is still a right of force, though of lawful force; something in the nature of civil process, where force is employed; but a lawful force, which cannot lawfully be resisted. For it is a wild conceit, that wherever force is used, it may be forcibly resisted; a lawful force cannot lawfully be resisted. The only case, in which it can be so in matters of this nature, is in the state of war and conflict between two countries, where one party has a perfect right to attack by force, and the other has an equally perfect right to repel by force. But in the relative situation of two countries at peace with each other, no such conflicting rights can possibly co-exist. The authority of the sovereign of the neutral being interposed in any manner of mere force cannot legally vary the rights of a lawfully commissioned belligerent cruiser. What may be given, or be fit to be given, in the administration of this species of law to considerations of comity or of national policy, are views of the matter, which a Prize Court has no right to entertain. Legally, it cannot be maintained; that, if a belligerent commissioned cruiser, during the wars of his own country, has a right by the law of nations to visit and examine neutral ships, a neutral sovereign is authorized by that law to obstruct the exercise of that right with respect to the merchant

ships of his country. Two sovereigns may agree, if they think fit, as in some late instances they have agreed, by special covenant; that the presence of one of their armed ships along with their merchant ships shall be mutually understood to imply, that nothing is to be found in that convoy of merchant ships inconsistent with amity or neutrality; and, if they consent to accept this pledge, no third party has a right to quarrel with it any more than with any other pledge, which they may agree mutually to accept. But surely no sovereign can legally compel the acceptance of such a security by mere force. The only security known to the law of nations upon this subject, independent of all special covenant, is the right of personal visitation and search to be exercised by those who have an interest in making it. Among the loose doctrines, which modern fancy under the various denominations of philosophy and philanthropy have thrown upon the world, it has been advanced or rather insinuated, that it might possibly be well if such a security were accepted. Upon such unauthorized speculations, it is not necessary to descant. The law and practice of nations give them no sort of countenance, and until that law and practice are new modelled in such a way as may surrender the known and ancient rights of some nations to the present convenience of other nations, no reverence is due to them; they are the elements of that system, which, if it is consistent, has for its real purpose an entire abolition of capture in war; that is, in other words, to change the nature of hostility, as it has ever existed amongst mankind, and to introduce a state of things not yet seen in the world, that of a military war and a commercial peace. If it were fit, that such a state should be introduced, it is at least necessary that it should be introduced in an avowed and intelligible manner, and not in a way, which professing gravely to adhere to that system, which has for centuries prevailed among civilized states, and urging at the same time a pretension utterly inconsistent with all its known principles,

delivers over the whole matter at once to eternal controversy and conflict, at the expense of the constant hazard of the harmony of states and of the lives and safety of innocent individuals.

The penalty for a violent contravention of this right, is the confiscation of the property so withheld from visitation and search. Vattel, one of the most correct, and certainly not the least indulgent, of modern professors of public law, expresses himself thus: "On ne peut empêcher le transport des effets de contrabande, si l'on ne visite pas les vaisseaux neutres, que l'on rencontre en mer. On est donc en droit de les visiter. Quelques nations puissantes ont refusé en différents temps de se soumettre à cette visite. Aujourd'hui un vaisseau neutre, qui refuseroit de souffrir la visite, se ferait condamner par cela seul comme étant de bonne prise." Vattel is here to be considered, not as a lawyer merely delivering an opinion, but as a witness asserting the fact, that such is the existing practice of modern Europe. And to be sure, the only marvel in the case is, that he should mention it as a law merely modern (e), when it is remembered, that it is a principle not merely of the civil law, on which great part of the law of nations is founded, but of the private jurisprudence of most countries in Europe, that a contumacious refusal to submit to fair inquiry infers all the penalties of convicted guilt. Conformably to this principle, we find in the celebrated French Ordinance of 1681, now in force, Article XII., that every vessel shall be good prize in case of resistance and combat; and Valin, in his smaller Commentary, says expressly, that although the expression is in the conjunctive, yet that resistance alone is sufficient. He refers to the Spanish Ordinance of 1718, evidently copied from it, in which it is expressed in the disjunctive, in case of resistance or combat; and recent instances prove that Spain continues to act upon this principle. The first time

(e) Vattel was misled by Grotius's account of the correspondence between Henry 4 and Queen Elizabeth. Vide Vatt. iii. § 114.