2dly. That the authority of the sovereign of the neutral country being interposed in any manner of mere force cannot legally vary the rights of a lawfully commissioned belligerent cruiser.

3dly. That the penalty for the violent contravention of this right is the confiscation of the property so withheld from visitation and search. For the proof of this I need only refer to Vattel, one of the most correct and certainly not the least indulgent of modern professors of public law.'

Sir William Scott was very sure of the principles he was laying down and he was also sure of the exception he was about to mention, because he felt himself justified in debating, and proclaiming publicly:

But I stand with confidence upon all fair principles of reason,-upon the distinct authority of Vattel,-upon the Institutes 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 vessel to a lawful cruiser, is followed by the legal consequence of confiscation.*

It is believed that no stronger statement is to be found in the books of the duty of the neutral to submit to visit and search, and it is also believed that no stronger statement is to be found in the books of the duty of the belligerent cruiser to visit and search the neutral vessel in order to determine whether it or its cargo is liable to seizure or confiscation. And while planting himself firmly upon all fair principles of reason, upon the authority of publicists and upon the practice of maritime Nations, he nevertheless felt it necessary to provide for the exceptional case justifying resistance against the unlawful acts of a belligerent in the matter of visit and search, raising the issue of self-preservation. Thus:

How stands it by the general law? I don't say that cases may not occur in which a ship may be authorized by the natural rights of self-preservation to defend itself against extreme violence threatened by a cruiser grossly abusing his commission; but where the utmost injury threatened is the being carried in for inquiry into the nearest port, subject to a full responsibility in costs and damages if this is done vexatiously and without just cause, a merchant vessel has not a right to say for itself, (and an armed vessel has not a right to say for it), "I will submit to no such inquiry, but I will take the law into my own hands by 11 C. Robinson, pp. 360-364.

2 Ibid., p. 369.

force." What is to be the issue, if each neutral vessel has a right to judge for itself in the first instance whether it is rightly detained, and to act upon that judgment to the extent of using force? Surely nothing but battle and bloodshed, as often as there is anything like an equality of force or an equality of spirit.'

This is no doubt true, and the neutral should not resist if it is not to pass upon in the matter of visit and search which it is inclined to consider unlawful. As Sir William Scott says, the inconvenience is that of being carried into the port of the captor with compensation in damages for the unlawful act; but if the captor is known to sink at sight and without warning, and even in the case of warning to cast officers and crew and passengers adrift to shift for themselves without taking them aboard, as was not done even by France when it was running amuck in the days of the Revolution, an exceptional case is clearly made out in the sense of Sir William Scott. Accepting this judgment in its full extent as correct in principle, and therefore correct in law, the right of the belligerent against the property of its enemy is the right of capture, and the right of visit and search is ancillary to that right. The right of the belligerent against neutrals is the right of self-defense in preventing the "enemy from being supplied with the instruments of war, and from having his means of annoyance augmented by the advantages of maritime commerce," and to the exercise of this right visit and search are an indispensable prerequisite, because without visit and search it cannot be determined whether the neutral vessel is engaged in a transaction which renders it obnoxious to the belligerent.

SECTION 3. DESTRUCTION OF PRIZES

On principle it is clear that, if the property of the enemy be liable to capture, a belligerent cruiser may seize an enemy merchantman and that by the fact of war the title passes from the enemy to the country of the captor; and it is immaterial to the private owner if he is thus deprived of his property whether it be used or destroyed by the belligerent. It is, however, a matter of importance to the individual captors who, by virtue of the laws of their country, are entitled to a share in the spoils, that the capture be valid, because otherwise they have no claim, and that the title, vested by capture in the sovereign, be divested by a court of the sovereign and passed

11 C. Robinson, p. 374.

to the captors, a prerequisite of which is that the vessel was an enemy vessel and therefore lawful prize. It is also material to a neutral who may claim an interest in the vessel or cargo that his rights in the premises be determined and safeguarded, which can best be done in a judicial proceeding according to the rules of law, in the quiet of the courtroom, instead of by a decision of the commander of the capturing vessel laboring under excitement and given offhand from the quarter-deck.

Therefore it has become a rule of the law of Nations and a practice of belligerents to pass enemy prizes before a court of justice for the benefit of the officers and crew making the capture and entitled to a share of the proceeds and for the benefit of neutrals whose rights may be involved. In exceptional cases, however, it is the practice of Nations to destroy an enemy prize. This is allowed when the prize cannot be brought into a port of the captor, or when such action would, in the judgment of the captor, seriously interfere with the military operations.

An authority or two is quoted on each of these points, although it may seem superfluous to do so because of their universal recognition.

In the leading case of The Elsebe (5 C. Robinson 173), decided in 1804, Sir William Scott was obliged to consider the interest of the Crown as distinct from the interest of the individual captors in the prize, and in the course of his observations that very learned and upright judge said:

Prize is altogether a creature of the crown. No man has, or can have, any interest but what he takes as the mere gift of the crown. Beyond the extent of that gift, he has nothing. This is the principle of law on the subject, and founded on the wisest reasons. The right of making war and peace is exclusively in the crown. The acquisitions of war belong to the crown; and the disposal of these acquisitions may be of the utmost importance for the purposes both of war and peace. This is no peculiar doctrine of our constitution; it is universally received as a necessary principle of public jurisprudence, by all writers on the subject, Bello parta cedunt reipublicae. It is not to be supposed that this wise attribute of sovereignty is conferred without reason; it is given for the purpose assigned, that the power to whom it belongs to decide on peace or war may use it in the most beneficial manner for the purposes of both.1 Next as to the right of the belligerents to destroy the enemy prize, tempered by the interest of neutrals. Again the great authority of 15 C. Robinson, p. 181.

Sir William Scott is invoked. In the case of The Felicity (2 Dodson, p. 381), decided in 1819, the question was as to the right of the captor to destroy an American vessel captured during the war of 1812 between Great Britain and the United States.

The facts of the case are thus stated by his Lordship:

This ship and cargo, American property, were destroyed by Captain Hope of his Majesty's ship Endymion on the 1st of January, 1814, being then in the prosecution of a voyage from Cadiz (where she had carried provisions) to Boston, where her owners resided. She had encountered a continuance of most tempestuous weather, and had suffered most severely under it, so as to make it more than doubtful whether she could possibly reach America. Under a strong sense of their danger, they had determined, upon a general council of the master and mariners, to make for the island of Bermuda, but were baffled by the opposition of a head-wind, and compelled to resume their course to America in their shattered condition; and under the unsettled and boisterous weather which belongs to that season of the year in such latitudes, she is met with by his Majesty's ship Endymion, Captain Hope, by whose orders she was destroyed, after her captain and crew, with their baggage, were removed on board The Endymion."

His Lordship then considered the right of the captor to destroy the vessel under these circumstances. On this point he says:

Taking this vessel and cargo to be merely American, the owners could have no right to complain of this act of hostility, for their property was liable to it, in the character it bore, at that period, of enemy's property. There was no doubt that The Endymion had a full right to inflict it, if any grave call of public service required it. Regularly a captor is bound by the law of his own country, conforming to the general law of nations, to bring in for adjudication, in order that it may be ascertained whether it be enemy's property; and that mistakes may not be committed by captors, in the eager pursuit of gain, by which injustice may be done to neutral subjects, and national quarrels produced with the foreign states to which they belong. Here is a clear American vessel and cargo, alleged by the claimants themselves to be such, and consequently the property of enemies at that time. They share no inconvenience by not being brought in for the condemnation, which must have followed if it were mere American property; and the captors fully justify themselves to the law of their own country, which prescribes the bringing in, by showing that the immediate service in which they were engaged, that of watching the enemy's ship of war, 12 Dodson, p. 385.

The President, with intent to encounter her, though of inferior force, would not permit them to part with any of their own crew to carry her into a British port. Under this collision of duties nothing was left but to destroy her, for they could not, consistently with their general duty to their own country, or indeed its express injunctions, permit enemy's property to sail away unmolested. If impossible to bring in, their next duty is to destroy enemy's property. Where doubtful whether enemy's property, and impossible to bring in, no such obligation arises, and the safe and proper course is to dismiss. Where it is neutral, the act of destruction cannot be justified to the neutral owner, by the gravest importance of such an act to the public service of the captor's own state; to the neutral it can only be justified, under any such circumstances, by a full restitution in value. These are rules so clear in principle and established in practice, that they require neither reasoning nor precedent to illustrate or support them.1

It will be observed that not only the captain and crew, but also the baggage were taken aboard The Endymion before the enemy prize was destroyed, although The Endymion was at that very moment "watching the enemy ship of war, The President, with intent to encounter her."

The action of France in the case of The Ludwig, captured during the war of 1870, is sometimes pressed into service in defense of the destruction of neutral prizes, which will be considered later, and the case is only referred to here as showing the generality of the rule that enemy prizes may only be destroyed if they cannot be brought into port for adjudication. It appeared that the French cruiser Desaix captured three German vessels, and because of the large number of prisoners on board the captain destroyed the vessels as he considered it unsafe to spare a prize crew in order to escort the vessels into port. A claim for restitution made by the owners of the captured vessels, disallowed in first instance, was likewise disallowed on appeal because it was held that "from the ship's papers and from the proceedings it appears that the vessels belonged to German subjects, thus making them good and valuable prize, that the destruction having been caused by force majeure, in order to maintain the safety of the captain's operations, there was no cause to restore the captured property; that in acting as they had done they had no doubt. made use of a rigorous right but one provided for by the laws of war and recommended by the instructions they carried." 2

12 Dodson, pp. 385-386.

2 Barboux, Jurisprudence du Conseil des Prises pendant la guerre de 1870-71, pp. 153 et seq.