a special permission, to whomsoever the same may belong: and that save and except only as aforesaid all the subjects of her Majesty and the subjects or citizens of any neutral or friendly state shall and may, during and notwithstanding the present hostilities with Russia, freely trade with all ports and places wheresoever situate which shall not be in a state of blockade, save and except that no British vessel shall under any circumstances whatsoever, either under or by virtue of this order or otherwise, be permitted or empowered to enter or communicate with any port or place which shall belong to or be in the possession or occupation of her Majesty's enemies.

The effect of this order is to relieve neutral or friendly vessels, having enemy's property on board, from being captured and sent into port for the adjudication of their cargoes. It also puts aside, during the present war, all those delicate and difficult distinctions which arise by the law of nations from the circumstance of a neutral vessel being engaged in the coasting, fishing, or other privileged trade of the enemy. Under this order such circumstances cease, during the present war, to impress a hostile character upon a neutral ship; for such trade is expressly sanctioned by the terms of the order. But the order does not waive any belligerent right in respect of breach of blockade, or the carriage of contraband or enemy's despatches, or military or naval officers of the enemy.

In order to entitle a vessel to the benefit of this order, it is necessary not only that it should be sailing under a neutral or friendly flag, but also that it should be neutral or friendly property. The questions which the belligerent rights waived by this order leave to be considered, are:first, the law in respect of search and capture; secondly, of the national character of vessels; thirdly, of blockade; fourthly, of contraband; fifthly, of licences; sixthly, of ransom; seventhly, of the rights of captors.

These appear to be the only subjects which fall within the

scope of a work which is confined to the law of prize, as far as it regards the duties of naval officers. For the purposes of the present inquiry these subjects may be concisely treated; for it is unnecessary to consider those circumstances which are sufficient to relieve from confiscation a vessel which is liable to capture. Such circumstances are matters of further proof, and concern not the captors, but the prize court. All that a naval officer has to consider is, first, whether the ship's papers are genuine; and, secondly, whether upon examination of those papers there be probable grounds for believing the ship to be liable to capture. If there be such grounds apparent on the face of the papers, supposing them to be genuine, or if there be probable ground for believing them to be spurious, or for suspecting that there has been subtraction or spoliation of papers, the capture is justifiable, although the owner may be entitled to restitution upon proof of facts not appearing upon the ship's papers.

6

CHAPTER II.

OF THE RIGHT OF SEARCH AND CAPTURE.

the

THE right of search is not affected by the orders in council. 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 commissioned cruisers of a belligerent nation. Till they are visited and searched, it does not appear what the ships or 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 (a). 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 for any damages incurred thereby, if the vessel upon visitation should be found not 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 contraband of war or enemy's despatches or military or naval officers of the enemy on board. If the master of a neutral vessel resists by force, that is a ground of confiscation (b), and consequently of capture. This

(a) The Maria, 1 Rob. 340.

(b) Valin. Comm. iii. 9. XII. Ir. des Pr. iv. 1. The Topaz, 2 Acton, 20. Vatt. iii. § 114.

rule applies, whether the resistance be actual or whether it be constructive, as by sailing under hostile or neutral convoy (c).

The common law right of search has been regulated, and the right of sailing under neutral convoy has been created and regulated by several treaties.

First, with regard to the right of sailing under convoy it is provided, between Great Britain and Sweden and Denmark, by the treaty of St. Petersburgh of June, 1801, acceded to by Denmark and Sweden respectively as principals in 1802; that the owners of all merchant vessels destined to sail under convoy of a ship of war shall produce to the commander of the convoying ships their passports and certificates, or sea letter, in the form annexed to the present treaty: that when any ship of war having under its convoy any merchant ships shall be met by any ship of war of the other contracting party, who shall then be in a state of war, to avoid all disorder they shall keep out of range of gunshot, unless the state of the sea or the place of meeting shall make a nearer approach necessary; and the commander of the ship of the belligerent power shall send a boat on board the convoying ship, where proceedings shall be had for the mutual verification of papers and certificates, which ought to shew, on the one part, that the neutral ship of war is authorized to take under its convoy such and such merchant vessels of its nation laden with such a cargo and for such a port; on the other part, that the ship of war of the belligerent party belongs to the royal or imperial navy of their Majesties.

Which verification having been made, no visitation shall take place, if the papers are found to be regular, and there exists no valid ground of suspicion. In the opposite case the commander of the neutral ship of war (being thereunto

(c) The Maria, 1 Rob. 340. The Elsabe, 4 Rob. 408, per Story, J., arguendo, 9 Cranch, 440-443.

duly required by the commander of the ship of the belligerent power) must bring to and detain his convoy during the time, that shall be necessary for the visitation of the vessels, which compose it; and he shall have the right of naming or delegating one or more officers, who shall assist in the visitation of the said vessels, which shall be made in his or their presence on board each merchant vessel conjointly with one or more officers appointed by the commander of the ship of the belligerent party.

If it should happen that the commander of the ship of the power at war, having examined the papers found on board and interrogated the master and crew of the vessel, shall see just and sufficient reasons for detaining the merchant vessel for the purpose of further search, he shall notify that intention to the commander of the convoying ship, who shall be empowered to appoint an officer to remain on board the vessel thus detained, and to assist in the examination of the cause of its detention. The merchant vessel shall be immediately carried into the nearest and most convenient port of the belligerent power, and the further inquiry shall be conducted with all possible diligence, &c. On the other hand, the convoying ship shall not be allowed, on any pretext whatsoever, to oppose by force the detention of any merchant vessel by the ship of war of the belligerent power (d).

It was necessary to recite this treaty on account of the formalities which it prescribes. But for any substantial purpose it is but solemn trifling; for it provides no better security for merchant vessels than is provided by the common law of nations, except as to privateers and vessels furnished with letters of marque, which have no place in the present war.

By the treaty of 1661 between Great Britain and Sweden (e), For the forms, see

(d) Mart. Trait. Supp. ii. 476; iii. 192. 196. Appendix.

(e) Chalmers, Tr. 1. 53. Jenkinson, Tr. 1. 166.