Decisions of the French tribunals as to passports, prescribed by treaties.

judged by the court of Cassation, at Paris, relative to the capture of a Hamburg vessel, the Young Catharine, the 15th April, 1799, and by the new council of prizes, the 19th December, 1801, and the 4th April, in the same year, as to the capture of the Swedish ship Elegance, pursuant to a letter addressed to the council by the minister of foreign relations, stating, that the card of privilege or liberty given by the Swedish government to ships to navigate in the Baltic, supplied the place of a passport, when it agreed with the date of departure.

15. Another example will confirm the justness of this reasoning. The 13th article of the treaty of 1769, between France and the free city of Hamburg, renewed in 1789, which prescribes the form of passports to be delivered in time of war, and by which the neutrality of the ship is to be known, though couched in imperative terms, is, nevertheless, applicable only to the case in which the ship shall be destined to an enemy, or where its neutrality shall not be proved by other documents on board. In fact, all the penal conditions of this treaty relate only to the fraudulent commerce which the Hanse-Towns might carry on with, or for the enemies of France, and are not designed to hinder the commercial intercourse with France, to whom their flag may be of infinite use in time of war. Thus, the seizure of a Hamburg vessel bound for France, on the ground that the passport is not agreeable to the form annexed to the 31st article of the treaty, will not be valid, if it be proved by the other docu

Decision of the council of prizes at Paris, 1800.

ments, that the vessel is really a Hamburgher. Such was the just decree of the council of prizes at Paris, the 1st December, 1800, in favour of the ship the Young Catharine, of Hamburg, to which the provision of the 31st article of the treaty was subjoined.*

* The French tribunals have not, in all cases during the late war with Great-Britain and the allied powers, decided on these just principles. American and other neutral vessels have been condemned merely for not having a passport in the form prescribed by treaty, or for a pretended contravention of the particular marine ordinances of France not agreeable to the law of nations, and which other independent states are not bound to observe.

As to the proofs required of neutrals by the British courts, see Robinson's Reports of Cases decided in the High Court of Admiralty. The only evidence, in the first instance, is the ship's papers, and the preparatory examinations of the master and mariners. If there be a contradiction between the documentary evidence and that of the witnesses, the general rule is to order further proofs; but circumstances will often determine, whether it be a proper case for further proof or not. 1 Robinson, 4, 7; 2 Robinson, 14, 15, 108, 161, 348, 355; 3 Robinson, 78, 111, 114, 122; 4 Robinson, 32, 203, 204.

CHAPTER IV.

OF THE RIGHTS OF BELLIGERENTS ON THE SEA, AND THEIR CONSEQUENCES.

ART. I.

Of Captures.

CAPTURE is the seizure of a vessel belonging to

a real or supposed enemy, with the effects on board, either by a belligerent, or by some other person, to whom his government has given the power, with an intention to divest the owner of the property and to appropriate it to himself. (205)

2. In detaining, or seizing a vessel, there may be two objects in view; either to take and keep possession of the vessel and cargo, which is, properly speaking, a capture; or to seize the effects of an enemy, or goods contraband of war, on board a neutral and friendly ship, which is no more than a mere detention, without any design to injure the subjects of neutral and friendly powers.

(205) See the definition of capture given by d'Habreu, in his work, Tratado sobre las Presas, cap. 1, § 3, p. 2, &c. which Valin, in his Traité des Prises, chap. 1, § 9, considers inaccurate, though his own definition is not more exact,

Captures are just or unjust.

It

3. A capture may be just or unjust. It is unjust, when made by a pirate, a friend, or a neutral, contrary to the principles of the primitive or conventional law of nations. It is just, when it is made by an open enemy, and according to the laws of war. is not the declaration of war alone, or the law between belligerent nations, that constitutes the justice of a capture: the capture of a neutral and friendly vessel is also lawful, when laden with goods destined for a port besieged, or blockaded, or the access to which is publicly interdicted even to neutrals, in case of a prohibited and contraband trade, for the prohibition previously understood, gives the right to sieze and confiscate the goods of the offenders.(206)

4. Though the laws of war authorise belligerents to commit every kind of hostility towards an enemy, wherever he may be found; yet public faith, and the universal law of nations, do not permit them to molest a vessel within the ports or bays of neutral pow ers. According to this principle, a capture is unjust, and consequently of no effect, if made under the cannon of a town, or a fort, or in that part of the sea comprehended within the jurisdiction of a neutral and friendly power.(207)

(206) Grotius, de jure belli ac pacis, lib. 3, cap. 3, § 1, and cap. 17, § 3. Heineccius, de navibus ob vect. vet. merc. com. cap. 1, § 9. Selden, mare clausum, lib. 2, cap. 20. Vattel, Droit des Gens, lib. 3, chap 7, § 113. Hubner, de la saisie des batimens neutres, tom. 1, part. 2, chap. 3, § 5.

(207) Valin, Traité des Prises, chap. 4, sect. 3, tot. Puffen

Captures cannot be made within the neutral territory.

5. Some authors, even those of the highest reputation, who have written on the maritime law of nations, (I shall cite only Casaregis, because he has copied the the doctrine of the rest) relying on the practice or law observed in the chase of animals, maintain that if a naval fight has commenced on the high sea, a belligerent may pursue and capture the ship of his enemy, even under the cannon, and within the jurisdiction of a neutral power.(208)

6. If we recollect the undeniable principles laid down in the first chapter of this volume, particularly under the head of the rights and duties of neutrals, we shall at once acknowledge the futility of this opinion, and the weakness of the comparison. In fact, as soon as an enemy has got under the cannon, or within the territorial sea of a neutral and friendly power, he ought to be considered as in a sacred asy

dorf, de jure nat. et gent. lib. 4, cap. 5, § 6, et 7. D'Habreu, sobre las Presas, par. 1, cap. 5, § 13 et 16. Emerigon, Traitè des Assurances, chap. 12, sect. 23. See also Vol. I. of this work, chap. 2, art. 1 and 3.

(208) Casaregis, de Commercio, disc. 24, n. 2. Hostium personæ et bona possunt ubique capi etiam in aliena jurisdictione, ut de ferâ captâ in alieno agro etiam domino agri resistente quod fiat capientis. A. Ponte, de Potestate Proregis, tit. 2, n. 11. Jacobus Galea, cited by Balduc, tit. de Assec. decis. 4, n. 5, in tot. Roccus, de Offic. tit. de Præs. class. § 2, de Præd. Bon. Hott. n. 99, &c. Et propter eandem rationem in mari quoque alteri principi subjecto depredationes fieri possunt. Such is also the opinion of Besoldus, de Jure territor. cap. 3, n. 4, and of Loccenius, de Jure maritimo, lib. 1, cap. 8, n. 10, vers. quin et hostilium.