boats

respected by all nations, because their labours are intended for the benefit of all mankind.' Thus, when Captain Cook sailed from Plymouth, in 1776, in the ship 'Resolution,' accompanied by the Discovery,' M. de Sartine, the French Minister of Marine, despatched a letter to the Admiralties and Chambers of Commerce throughout the kingdom, to be communicated to the owners and captains of vessels cruising as privateers or otherwise, directing them, in case they met at sea, to treat him and his vessels as neutrals and friends, provided that he, on his side, abstained from all hostility. This praiseworthy example has since been followed by all civilised powers towards vessels similarly employed. It is, however, usual and proper for the Government sending out such expeditions, to give formal notice to other powers, describing the character and object of the expedition, the number of vessels employed, the nature of their armament, &c., in order that they may issue the proper instructions to their own vessels on the high seas. Such expeditions must confine themselves most strictly to the object in view; if they commit any act of hostility they forfeit their exemption from capture.2

Fishing § 23. Fishing boats have also, as a general rule, been exempt from the effects of hostilities. Henry VI. issued orders on the subject of fishing vessels in 1403 and 1406. In 1521, while war was raging between Charles V.

1 On the same principle the Vice-Admiralty Court of Halifax restored to the Academy of Arts in Philadelphia a case of Italian paintings and prints, captured on their passage to the United States by a British ship of war in 1812, in conformity to the law of nations, as practised by all civilised countries, and because the arts and sciences are admitted to form an exception to the severe rights of warfare' (the 'Marquis de Somerueles,' Stewart, Vice-Ad. R. of Nova Scotia, 482). A case of books taken on board a prize vessel was restored by the United States to a literary institution of the hostile State, on the ground that it was not the subject of a commercial adventure (the 'Amelia,' 4 Phil., 412). Lord Howe considered that the custom of nations at war with each other did not justify an officer in wantonly throwing a casket of public money into the sea (Lord Howe's Life, p. 479).

* In 1793 vessels carrying mails for the English or French Post Office authorities were permitted to convey the mails between the ports of Great Britain and France, notwithstanding the war between those countries. By the Postal Convention of 1843, between France and England, in case of war, the mail packets between Dover and Calais (now extended to all mail packets of either Government by Convention of September 24, 1856) shall continue their navigation until notification be made by either Government, in which case they shall be permitted to return freely to their respective ports.

and Francis, ambassadors from these two sovereigns met at Calais, then English, and agreed that, whereas the herring fishery was about to commence, the subjects of both belligerents engaged in this pursuit should be safe and unmolested by the other party, and should have leave to fish as in time of peace. In the war of 1800, the British and French Governments issued formal instructions exempting the fishing boats of each other's subjects from seizure. This order was subsequently rescinded by the British Government, on the ground that some French fishing boats were equipped as gun-boats (it being intended by the French to form a flotilla of some 500 or 600 of them to employ against England), and that some French fishermen, who had been prisoners in England, had violated their parole, and had gone to join the French fleet at Brest. The British restriction was afterwards withdrawn, and the freedom of fishing was again allowed on both sides. Emerigon refers to ordinances of France and Holland, in favour of the protection of fishermen during war. Fishermen were included in the treaty between the United States and Prussia in 1785, as a class of non-combatants not to be molested by either side. French writers consider this exemption as an established principle of the modern law of war; it has been so recognised in the French courts, which have restored such vessels when captured by French cruisers,2 and the French Government, for the last forty years, has absolutely prohibited their capture. The United States made a like prohibition during the Mexican war. The doctrine, however, of the English Courts is that such exceptions form a rule of comity only; for fishing vessels fall under the description of ships employed in the enemy's trade, and as such may be condemned as prize.3

§ 24. Some have contended that the rule of exemption Cases of ought to extend to cases of shipwreck on a belligerent coast, shipwreck to cases of forced refuge in a belligerent harbour by stress of weather, or want of provisions, and even to cases of entering such ports from ignorance of the war. There are exceptional cases where such exemption has been granted. Thus, when

1 Emerigon, Traité des Assurances, ch. iv. § 9, and ch. xii. § 19. 2 Wildman, Law of Nations, p. 152; Martens, Recueil, &c., tome vi. pp. 503, 515; De Cussy, Droit Maritime, liv. i. tit. iii. § 36; liv. ii. ch. xx.; Massé, Droit Commercial, liv. ii. tit. i. § 333.

3 The Young Jacob,' 1 Rob., 20.

tions

between

the English man-of-war, the 'Elizabeth,' had been forced by stress of weather, in 1746, to take refuge in the belligerent port of Havana, the captain offered to surrender himself to the Spanish governor as prisoner, and his vessel as a prize, but the latter refused to take advantage of his distress; on the contrary, he offered him every facility for repairing his vessel, and, on leaving, gave him a safe-conduct as far as the Bermudas. Again, in 1780, an English captain entered the Spanish port of San Fernando de Omoa, in Honduras, without knowing that it was belligerent. The Spanish commandant refused to take advantage of his ignorance, but permitted him to provision his ship and to sail unmolested to Jamaica. On the other hand, the French squadron which entered Louisburg, in the Island of Cape Breton, in 1745, ignorant of its hostile character, was captured as prize, and its officers and crews retained as prisoners of war. The French captain Nalin entered the port of Granada, in the Antilles, in the war of 1780, ignorant of its hostile character. He was immediately seized as a prisoner of war, and his vessel as a good prize. In 1799 a Prussian vessel, La Diana,' forced to take refuge in the port of Dunkirk, was restored by the French Tribunal on the principle of res sacra miseria; but in the analogous case of Maria Arendz,' in 1800, the Court condemned, in strict conformity with the French ordonnances. A court may be compelled by a sense of duty to condemn in such cases, but the sovereign power of the State might well exercise its sense of humanity and generosity by restoring even after condemnation. Notwithstanding the plea raised by French writers in such cases that le malheur opère de plein droit une trève, the principle is neither admitted by the general law of nations, nor by the maritime ordonnances of France, nor by her practice during the Revolution.'

Distino- § 25. Letters of marque, or mart, are extraordinary commissions granted by the Admiralty to commanders of merchant reprisals ships for reprisals, in order to make reparation for those and pri- damages they have sustained, or the goods they have been vateering despoiled of, by aliens at sea, or to cruise against and make

prize of an enemy's ships either at sea or in his harbours.

1 Pistoye et Duverdy, Des Prises, vol. i. pp. 114, 122; Ordonnance de 1681; Ordonnance de 1696, May 12; Règlement de 1778, July 26, Arts. 14, 15; Arrêté de 1800, March 27, Arts. 19, 20; Déclaration de 1854, March 29.

There are two species of letters of marque-1st, those which are special, for the reparation of injuries sustained by individuals at sea, after all attempts to procure legal redress have failed; and 2nd, those which are general, they being issued by the government of one State against all the subjects of another upon an open rupture between them. Letters of marque are always joined to letters of reprisal, when it is for the reparation of a private injury; but when the hurt of an enemy is solely intended, as it is in time of war, letters of marque are generally granted alone, without letters of reprisal, and these constitute the commission of the privateer.2

A subject cannot for his own benefit make a reprisal without a commission; and if he should do so, the ship he might capture would be a droit of admiralty and belong to the sovereign or his grantee. Letters of reprisal are ordinary and extraordinary; the ordinary are either within or without the realm, and are always granted by the law of England to English merchants who have suffered in their persons or effects by aliens abroad, and cannot upon suit, or the sovereign demanding justice from abroad, obtain redress; in such case the injured person proving that he has prosecuted the offenders in legal course, and has had justice delayed or denied him, shall have a writ, out of Chancery, to arrest the merchant

1 Extract from letters of reprisal:-'Now know ye that for a full restitution to be made to him for his ships, goods, and merchandises of which the said A. B. was so despoiled as aforesaid, with all such costs and charges as he shall be at for the recovery of the same, we, by the advice of our Privy Council, have thought fit and by these presents do grant license and authorise under our great seal of England our said subject, A. B., his executors, administrators, and assigns for and on behalf of himself to equip, victual, furnish, and set to sea from time to time such and so many ships and pinnaces as he shall think fit . . . and with the ships and pinnaces by force of arms to set upon, take, and apprehend any of the ships, goods, moneys, and merchandises of the kingdom of or any of the subjects inhabiting within any of its dominions or territories, wheresoever the same shall be found, and not in any port or harbour in England or Ireland, unless it be the ships and goods of the parties who did the wrong. And the said ships and goods, moneys and merchandises being so taken and brought into some port of our realms and dominions, an inventory thereof shall be taken by authority of our Court of Admiralty and upon proof . . . they shall be judged lawful prize of the said A. B., his executors, administrators, and assigns, to retain and keep in his or their possessions and to make sale and dispose thereof in open market or however else to his and every of their best advantage and benefit in as ample manner as at any time heretofore hath been accustomed by way of reprisal.'

2 See 10 Hen. VI., c. 3; 14 Hen. VI., c. 7 ; and 33 Geo. III., c. 66, SS. 14 and 20.

strangers of the offending nation, or their goods, here in England. This writ is granted to the oppressed subject as a matter of right, not of favour, by the Lord Chancellor Ordinary reprisals cannot be revoked.

Extraordinary reprisals are granted by any Secretary of State, but are only during the good pleasure of the sovereign, and are for the purpose of weakening the enemy in time of war. They may be revoked at any time.

It is lawful for every subject to seize upon the goods or ships of the enemy after war has been proclaimed, but such goods or ships are droits of Admiralty. All civilised nations, therefore, are accustomed to grant commissions to individuals authorising them in a special manner to attack and despoil the enemy. This is the case with officers in the army or navy, who take pay, and are under orders, and are liable to punishment for disobedience. Others receive no pay, but go to war at their own charges, providing ships and provisions, to attack or despoil the enemy. This is the case with privateers, to whom, instead of pay, leave is granted to keep what they may take from the enemy, when the same has been adjudged lawful prize.1

Kent, speaking of the hostilities of private subjects on the high seas, says: 'Vessels are now fitted out and equipped by private adventurers, at their own expense, to cruise against the commerce of the enemy. They are duly com

1 Extract from letters of marque for a privateer :-'Whereas we have declared war against the kingdom of and whereas our commissioners for executing the office of our High Admiral have thought A. B. fitly qualified, who has equipped, furnished, and victualled a ship called the "Rose," of the burthen of tons, whereof he is commander; and whereas the said A. B. has given sufficient bail, with sureties, to us in our said High Court of Admiralty, according to the effect and form set down in our instructions, a copy whereof is given to the said captain : Know ye therefore that we do by these presents grant commission to and do license the said A. B. to set forth in warlike manner the said ship called the "Rose," under his own command, and therewith by force of arms to apprehend, seize, and take the ships, vessels, and goods belonging to the kingdom of or the vessels and subjects of the King of

or others inhabiting within his country, territories, and dominions, and to bring the same to such ports as shall be most convenient, in order to have them legally adjudged in our said High Court of Admiralty of England. . . which being condemned it shall and may be lawful for the said A. B. to sell and dispose of such ships, vessels, and goods. And we pray and desire all Kings, Princes, Potentates, States, and Republics being our friends and allies, and all others to whom it shall appertain, to give the said A. B. all aid, assistance, and succour in their ports.'