acy upon the sea, German shipping sought refuge in neutral ports, and as German destruction of neutral vessels continued, and as the crews of German vessels committed acts which endangered the safety of shipping in the ports where their vessels lay, several countries seized the German vessels anchored in their harbors. In the cases

of Italy and Portugal, which seized the vessels only a short time before the outbreak of war with Germany and after the policy of war had probably been determined upon, the seizure did not purport to be an act of reprisal. Portugal frankly said that she seized the ships because she needed them. In the cases of Brazil and Spain the situation was different. On January 31, 1917 Germany notified Brazil that its policy of unrestricted warfare was to be put into operation the next day. On February 13, Brazil replied to Germany that if diplomatic relations were to be maintained, Brazilian ships must not be attacked on any pretext whatever. Nevertheless in the night of April 3 and 4, the Brazilian merchant vessel Parana, the property of the Brazilian Government, was sunk with loss of life. Consequently on April 11, Brazil broke off diplomatic relations with Germany. On May 22, the Brazilian merchant ship Tijuca was sunk. The loss of these vessels and the threatened loss of others was so serious a blow to Brazilian commerce that the President on May 26 asked Congress for authority to take over and utilize the German vessels, forty-three in number, then in Brazilian waters. In his message the President said:

It is apparent that it is necessary to utilize the German merchant ships anchored in the ports of Brazil, excluding however all purpose of confiscation, as repugnant to the spirit of our laws and to the general sentiment of the country. The utilization should be based on the principles of the Convention signed at the Hague October 18, 1907 and should be without compensation until we can determine whether the ships are private property which even in case of war should be respected, in which case Brazil will respect them, or whether they belong to enterprises which are connected in some way with the Government.

Documentos Diplomaticos, 1914-1917, 57.

The requested authority was granted and on June 2 the President expropriated (requisita) the ships, gave them a Brazilian registry and Brazilian names, placed them under the Brazilian flag and handed them over for operation to the Lloyd Brasiliero, a corporation then owned by the Brazilian Government and used as the Government's agent for the administration of the Government's merchant fleet. In reply to Germany's protest the Brazilian Minister of Foreign Affairs, Nilo Peçanha, said:

The measure adopted by the Government of the Republic of utilizing the German ships in consequence of the torpedoing of its merchant fleet, thus assuring immediately and directly, even though by force, satisfaction for the losses which have been caused us, was a legitimate defensive act,

founded upon Germany's own law and which all peoples
practice alike, without quitting a state of peace, and for the
precise purpose of compelling the offending nation to grant
the redress which is imperatively due to them.

Documentos Diplomaticos, 1914-1917, 66.

When an attempt was afterward made to libel one of these ships for supplies furnished, the Supreme Court of Brazil, on August 8. 1917, in the case of Domschke and Company, affirmed the decree of the District Court of Bahia and held that the ships had been seized as an act of national defense, that by such seizure title had passed to Brazil and that as state property they were not subject to libel.

On August 21, 1918, Spain issued a statement in which it said that as more than thirty per cent of the Spanish merchant marine had been sunk, with consequent embarassment to Spanish commerce, the German Government would be notified that in case of further sinkings German vessels then lying in Spanish ports would be substituted therefor. This however was not to involve confiscation, but would be "only a temporary solution until the establishment of peace, when Spanish claims also will be liquidated." Pursuant to this announcement, about ninety German vessels were seized. As nothing was said about the payment of indemnity, the seizure may be regarded as an act of reprisal for the losses inflicted on the Spanish merchant fleet. At the same time Spain reiterated her purpose to maintain a strict neutrality.

For a further discussion of reprisals see Cushing, Administrator v. United States (1887), 22 Ct. Cl. 1, 37; Hooper, Administrator v. United States (1887), 22 Ct. Cl. 408, 428, 456; Cobbett, Cases and Opintons, I, 347, 359; Bonfils (Fauchille), sec. 975; Hyde, II, 172; Moore, Digest, VII, 119.

SECTION 3. EMBARGO.

THE BOEDES LUST.

HIGH COURT OF ADMIRALTY OF ENGLAND. 1804.
5 C. Robinson, 233.

[On May 16, 1803, the government of Great Britain imposed an embargo on all Dutch property in British ports. In consequence, the Boedes Lust, a vessel belonging to residents of the Dutch colony of Demerara, was seized. The next month war was declared between England and Holland. In December, 1803, the colony of Demerara was ceded to England. The original owners now seek to recover the vessel.]

The claim is

SIR WILLIAM SCOTT [LORD STOWELL]. given for several persons as inhabitants of Demerara, not settling there during the time of British possession, nor averring an intention of returning when that possession ceased. They are therefore to be treated under this general view as Dutch subjects, unless it can be shown that there are any other circumstances by which they are protected. It is contended that there are such circumstances and that they are these: That the property was taken in a state of peace, and that the proprietors are now become British subjects, and consequently that this property could not be considered as the property of an enemy, either at the time of capture or adjudication. Now, with respect to the first of these pleas, it must be admitted, that alone would not protect them, because the Court has, without any exception, condemned all other property of Dutchmen taken before the war-And upon what ground?-That the declaration had a retroactive effect, applying to all property previously detained, and rendering it liable to be considered as the property of enemies taken in time of war. This property was seized provisionally, an act hostile enough in the mere execution, but equivocal as to the effect, and liable to be varied by subsequent events, and by the conduct of the Government of Holland. If that conduct had been such as to reestablish the relations of peace, then the seizure, although made with the character of a hostile seizure, would have proved in the event a mere embargo, or temporary sequestration. The property would have been restored, as it is usual, at the conclusion of embargoes; a process often resorted to in the practice of nations, for various causes not immediately connected with any expectations of hostility. During the period that this embargo lasted, it is said, that the Court might have restored, but I cannot assent to that observation; because, on due notice of embargoes, this Court is bound to enforce them. It would be a high misprision in this Court, to break them, by re-delivery of possession to the foreign owner of that property, which the Crown had directed to be seized and detained for farther orders. The Court acting in pursuance of the general orders of the State, and bound by those general orders, would be guilty of no denial of justice, in refusing to decree restitution in such a case, for it has not the power to restore. Its functions are suspended by a binding authority, and if any injustice is done that is an account to be settled be

tween the States. The Court has no responsibility, for it has no ability to act.

This was the state of the first seizure. It was at first equivocal; and if the matter in dispute had terminated in reconciliation, the seizure would have been converted into a mere civil embargo, so terminated. That would have been the retroactive effect of that course of circumstances. On the contrary, if the transactions end in hostility, the retroactive effect is directly the other way. It impresses the direct hostile character upon the original seizure. It is declared to be no embargo, it is no longer an equivocal act, subject to two interpretations; there is a declaration of the animus, by which it was done, that it was done hostili animo, and is to be considered as an hostile measure ab initio. The property taken is liable to be used as the property of persons, trespassers ab initio, and guilty of injuries, which they have refused to redeem by any amicable alteration of their measures. This is the necessary course, if no particular compact intervenes for the restitution of such property taken before a formal declaration of hostilities. No such convention is set up on either side, and the State, by directing proceedings against this property for condemnation, has signified a contrary intention. Accordingly the general mass of Dutch property has been condemned on this retroactive effect; and this property stands upon the same footing as to the seizure, for it was seized at the same time, and with the same intent.

The Settlement [Demerara] has since surrendered to the British arms, and the parties are become British subjects; and this, it is said, takes off the hostile effect, although it might have attached. This argument to be effective, must be put in one of these two ways, either that the condemnation pronounced upon Dutch property went upon the ground that, though seized in time of neutrality, it could not be restored only, because the parties were not now in a condition to receive it; or else, that though seized at a time, that may to some effects be considered as time of war, yet the subjects, having become friends, are entitled to restitution. This latter position cannot be maintained for a moment. It is contradicted by all experience and practice, even in the case of those who had an original British character.

Where property is taken in a state of hostility, the universal practice has ever been to hold it subject to condemnation, although the claimants may have become friends and subjects prior to the adjudication. The plea of having again become

British subjects, therefore, will not relieve them, and the other ground must be resorted to. That is equally untenable in point of fact; for the condemnation of the other Dutch property proceeded on no such ground as the mere incapacity of the proprietors to receive restitution. It proceeded on the other ground, which I have before mentioned, the retroactive effect of the declaration, which rendered their property liable to be treated as the property of enemies at the time of seizure.

NOTE. The laying of an embargo is an act of state, The Theresa Bonita (1802), 4 C. Robinson, 236. The term is applied to two measures which from a juristic standpoint are of an entirely different character. The first is an embargo laid by a country upon its own ships either for the purpose of protection or for the enforcement of some measure of the country's policy. This is purely a municipal regulation and while it may affect other countries it is not a measure to which they have a right to object. See Phillimore, III, 44. The American Embargo Acts of 1807 and 1809 were measures of this kind. For a full citation of cases arising under them see Moore, Digest, VII, 142. An embargo may also be laid with hostile intent upon the property of citizens of other countries, either for the purpose of compelling other countries to adopt a desired line of action, in which case it is in essence only a form of reprisal or retaliation, or because war is anticipated or has actually begun. See The Gertruyda (1799), 2 C. Robinson, 211, 219; Cobbett, Cases and Opinions, I, 351, 359; Bonfils (Fauchille), sec. 985; Hyde, II, 182.