the carriage of contraband usually terminates with the deposit of the contraband cargo, The Frederick Molke (1798), 1 C. Robinson, 86; The Sloop Ralph (1904), 39 Ct. Cl. 204, unless the voyage has been accomplished by means of false or simulated papers, The Nancy (1800), 3 C. Robinson, 122; The Lucy (1904), 39 Ct. Cl. 221; The Betsey (1904), 39 Ib. 452; The Alwina (1916), L. R. [1916] P. 131, when, on the return voyage, both the ship and the cargo purchased with the proceeds of the contraband cargo were held liable to capture. On the penalty for carrying contraband, see The Hakan (1916), L. R. [1916] P. 266, where the authorities are fully reviewed; The Maracaibo (1916), 2 Br. & Col. P. C. 294; The Hillerod (1917), L. R. [1918] A. C. 412; Pyke, The Law of Contraband of War, ch. xvi; Cobbett, Cases and Opinions, II, 430; Hyde, II, 629; Moore, Digest, VII, 744.

In the Sarah Christina (1799), 1 C. Robinson, 237, 241, which was the case of a Swedish ship carrying pitch and tar to France, Lord Stowell said:

In the practice of this Court there is a relaxation, which allows the carrying of these articles, being the produce of the claimant's country; as it has been deemed a harsh exercise of a belligerent right, to prohibit the carriage of these articles, which constitute so considerable a part of its native produce and ordinary commerce.-But in the same practice, this relaxation is understood with a condition, that it may be brought in, not for confiscation, but for preemption-no unfair compromise, as it should seem, between the belligerent's rights, founded on the necessities of self-defence, and the claims of the neutral to export his native commodities, though immediately subservient to the purposes of hostility.-To entitle the party to the benefit of this rule, a perfect bona fides on his part is required.

See also The Edward (1801), 4 C. Robinson, 68. In the Great War of 1914-1918, Great Britain freely applied the milder practice of preemption and paid for many cargoes which the strict law would have justified her in confiscating. See Phillipson, International Law and the Great War, 338; Pyke, The Law of Contraband of War, 224.

CHAPTER XIX.

RETALIATORY MEASURES.

THE FOX AND OTHERS.

HIGH COURT OF ADMIRALTY OF ENGLAND. 1811.
Edwards, 311.

SIR WILLIAM SCOTT [LORD STOWELL].-This was the case of an American vessel which was taken on the 15th November, 1810, on a voyage from Boston to Cherbourg. It is contended, on the part of the captors, that, under the order in council of 26th April, 1809, this ship and cargo, being destined to a port of France, are liable to confiscation. On the part of the claimants it has been replied, that the ship and cargo are not confiscable under the orders in council; first, because these orders have in fact become extinct, being professedly founded upon measures which the enemy had retracted; and secondly, that if the orders in council are to be considered as existing, there are circumstances of equity in the present case, and in the others that follow, which ought to induce the court to hold them exonerated from the penal effect of these orders.

In the course of the discussion a question has been started, what would be the duty of the court under orders in council that were repugnant to the law of nations? It has been contended on one side, that the court would at all events be bound to enforce the orders in council: on the other, that the court would be bound to apply the rule of the law of nations adapted to the particular case, in disregard of the orders in council. I have not observed, however, that these orders in council, in their retaliatory character, have been described in the argument as at all repugnant to the law of nations, however liable to be so described if merely original and abstract. And therefore it is rather to correct possible misapprehension on the subject than from the sense of any obligation which the present discussion imposes upon me, that I observe that this court is bound to ad

minister the law of nations to the subjects of other countries in the different relations in which they may be placed towards this country and its government. This is what other countries have a right to demand for their subjects, and to complain if they receive it not. This is its unwritten law, evidenced in the course of its decisions, and collected from the common usage of civilized states. At the same time it is strictly true, that by the constitution of this country, the king in council possesses legislative rights over this court, and has power to issue orders and instructions which it is bound to obey and enforce; and these constitute the written law of this court. These two propositions, that the court is bound to administer the law of nations, and that it is bound to enforce the king's orders in council, are not at all inconsistent with each other; because these orders and instructions are presumed to conform themselves, under the given circumstances, to the principles of its unwritten law. They are either directory applications of those principles to the cases indicated in them-cases which, with all the facts and circumstances belonging to them, and which constitute their legal character, could be but imperfectly known to the court itself; or they are positive regulations, consistent with those principles, applying to matters which require more exact and definite rules. than those general principles are capable of furnishing.

The constitution of this court, relatively to the legislative power of the king in council, is analogous to that of the courts of common law, relatively to that of the parliament of this kingdom. Those courts have their unwritten law, the approved principles of natural reason and justice-they have likewise the written or statute law in acts of parliament, which are directory applications of the same principles to particular subjects, or positive regulations consistent with them, upon matters which would remain too much at large if they were left to the imperfect information which the courts could extract from mere general speculations. What would be the duty of the individuals who preside in those courts if required to enforce an act of parliament which contradicted those principles, is a question which I presume they would not entertain a priori, because they will not entertain a priori the supposition that any such will arise. In like manner this court will not let itself loose into speculations as to what would be its duty under such an emergency, because it cannot, without extreme indecency, presume that any such emergency will happen; and it is the less disposed

to entertain them, because its own observation and experience attest the general conformity of such orders and instructions to its principles of unwritten law. In the particular case of the orders and instructions which give rise to the present question, the court has not heard it at all maintained in argument, that as retaliatory orders they are not conformable to such principles for retaliatory orders they are.-They are so declared in their own language, and in the uniform language of the government which has established them. I have no hesitation in saying that they would cease to be just if they ceased to be retaliatory; and they would cease to be retaliatory, from the moment the enemy retracts, in a sincere manner, those measures of his which they were intended to retaliate.

The first question is, what is the proper evidence for this court to receive, under all the circumstances that belong to the case, in proof of the fact that he has made a bona fide retractation of those measures. Upon that point it appears to me that the proper evidence for the court to receive, is the declaration of the state itself, which issued these retaliatory orders, that it revokes them in consequence of such a change having taken place in the conduct of the enemy. When the state, in consequence of gross outrages upon the law of nations committed by its adversary, was compelled by a necessity which it laments, to resort to measures which it otherwise condemns, it pledges itself to the revocation of those measures as soon as the necessity ceases. And till the state revokes them, this court is bound to presume that the necessity continues to exist. It cannot without extreme indecency suppose that they would continue a moment longer than the necessity which produced them, or that the notification that such measures were revoked, would be less public and formal than their first establishment. Their establishment was doubtless a great and signal departure from the ordinary administration of justice in the ordinary state of the exercise of public hostility, but was justified by that extraordinary deviation from the common exercise of hostility in the conduct of the enemy. It would not have been within the competency of the court itself to have applied originally such rules, because it was hardly possible for this court to possess that distinct and certain information of the facts to which alone such extraordinary rules were justly applicable. It waited, therefore, for the communication of the facts: it waited likewise for the promulgation of the rules that were to be practically ap

plied; for the state might not have thought fit to act up to the extremity of its rights on this extraordinary occasion. It might, from motives of forbearance, or even of policy, unmixed with any injustice to other states, have adopted a more indulgent rule than the law of nations would authorize, though it is not at liberty ever to apply a harsher rule than that law warrants. In the case of the Swedish convoy, which has been alluded to, no order or instruction whatever was issued, and the court, therefore, was left to find its way to that legal conclusion which its judgment of the principles of the law led it to adopt. But certainly if the state had issued an order that a rule of less severity should be applied, this court would not have considered it as any departure from its duty to act upon the milder rule which the prudence of the state was content to substitute in support of its own rights. In the present case it waited for the communication of the fact and the promulgation of the rule. It is its duty in like manner to wait for the notification of the fact that these orders are revoked in consequence of a change in the conduct of the enemy.

The edicts of the enemy themselves, obscure and ambiguous in their usual language, and most notoriously and frequently contradicted by his practice, would hardly afford it a satisfactory evidence of any such change having actually and sincerely taken place. The state has pledged itself to make such a notification when the fact happens: it is pledged so to do by its public declarations-by its acknowledged interpretations of the law of nations by every act which can excite a universal expectation and demand, that it shall redeem such a pledge. Is such an expectation peculiar to this court? most unquestionably not. It is universally felt and universally expressed. What are the expectations signified by the American government in the public correspondence referred to? not that these orders would become silently extinct under the interpretations of this court, but that the state would rescind and revoke them. What is the expectation expressed in the numerous private letters exhibited to the court amongst the papers found on board this class of vessels? not that the British orders had expired of themselves, but that they would be removed and repealed by public authority. If I took upon myself to annihilate them by interpretation, I should act in opposition to the apprehension and judgment of all parties concerned-of the individuals whose property is in ques