The ship was originally built and equipped at Baltimore as a privateer, during the late wars with Great Britain, and was then rigged as a schooner and called the Mammoth, and cruised against the enemy. After the peace she was rigged as a brig, and sold by the original owners. In January, 1816, she was loaded with a cargo of munitions of war by her new owners (who are inhabitants of Baltimore), and being armed with twelve guns constituting a part of the original armament, she was despatched from that port under the command of the claimant, ostensibly to the North West Coast, but in reality to Buenos Ayres. By the written instructions given to the supercargo on the voyage, he was authorized to sell the vessel to the Government of Buenos Ayres, if he could obtain a suitable price. She duly arrived at Buenos Ayres, having exercised no act of hostility, but sailed under the protection of the American flag during the voyage. At Buenos Ayres the vessel was sold to Captain Chaytor, and soon afterwards it assumed the flag and character of a public ship, and was understood by the crew to have been sold to the Government of Buenos Ayres. Captain Chaytor made known these facts to the crew, and asserted that he had become a citizen of Buenos Ayres, and had received a commission to command the vessel as a national ship, and invited the crew to enlist in the service, and the greater part of them enlisted accordingly.

The story of the Irresistible in the case of the Grand Para (in the same volume of Wheaton's Reports), is similar in its incidents, only the disguise was there even thinner.

Some difficulties in the administration of the law, it would probably not be denied, would be removed, if the sale of a ship of war to a belligerent were altogether prohibited. But it may be said, such an enactment would be nugatory, because the equipper could easily effect the transfer through a third party in a foreign country. Still, the offensive act would not, in form, be done within British jurisdiction, and that would be some gain. All that can be expected is, that every country should make its own laws as effectual as possible for the preservation of its own neutrality. Besides, even this mode of evasion might be to some extent checked by the adoption of some provision corresponding to one which is to the following effect in the United States Act of 1818 (section 10):

The owners or consignees of every armed ship sailing out of the ports of the United States, belonging wholly or in part to citizens thereof, shall enter into

bond to the United States, with sufficient sureties, prior to clearing out the same, in double the amount of the value of the ship and cargo, including armament, that she shall not be employed by such owners to cruise or commit hostilities against the subjects of any foreign State with whom the United States are at peace.

So much as to the question of an extension of the provisions relative to the equipping or arming of a ship.

With respect to commissioning, the Act seems defective in prohibiting only the issue or delivery of a commission within British jurisdiction. This does not appear to meet the case of a person coming to this country with such a commission already in his possession, and taking command of the ship here, by virtue of that commission.

The effectual course would be, I think, to enact that the commissioning by a belligerent, within British jurisdiction, of a ship of war, intended to operate against a State with which this country is not at war, should be, for the purposes of British law, invalid, at least in relation to the original voyage or cruise; in other words, not merely to prohibit the issuing or delivery of a commission, but to refuse to recognize the validity of any foreign commission first exercised or put in use, within British territory or waters.

As the law now stands, I imagine that, under skilful arrangements, in a time of neutrality on the part of this country, a ship of war might be built, equipped, furnished, fitted out, and armed, in an English port-might be sold and delivered there to the representative of a belligerent-might be taken in command there by the commissioned officer of the belligerent-might sail or steam out on to the high seas, and might exercise there all belligerent rights in the character of a public ship of war of the belligerent State, and yet might, during the whole course of her career, never be, for one moment, within the waters of the State by virtue of whose commission and under whose flag she made war. To prevent

the possibility of so gross an abuse of the benefits afforded to belligerents in neutral territory, it would, I think, be quite justifiable for this country to go further and lay down the rule that, for the purposes of British law, no ship of war should be deemed lawfully commissioned as a public ship of a belligerent State until she had been, so to speak, at home.

If, finally, this rule could be adopted into international law, a ship commissioned in neutral territory, or waters, might be regarded as a pirate, and such outrages on neutrality would then be effectually checked.

These are the observations I have to submit to your judg

ment.

The present Act of Parliament does not seem very clear in expression, or very well defined in extent, but few perhaps will wish, with Sir James Mackintosh, that there were none at all. Whenever the Act strikes an offending ship, an outrage on neutral rights is properly resented and punished. If the ship is detained and condemned, the schemes of the belligerent are frustrated. The doer of an illegal act in connection with her equipment cannot claim the assistance of any British Court to enforce such act, or any benefit to be derived from it. Notwithstanding that the ship escapes forfeiture, yet, if the offence is subsequently proved, she will be, in respect of her original voyage, tainted with illegality in the view of a British Court of Prize, her captures will be affected with the character of torts, and her prizes will be restored, whenever British jurisdiction attaches.

Such are some of the direct practical consequences of this legislation, and they must be admitted to involve strong inducements to the subjects of a neutral State to keep within

* 2 Bing. N. C. 796 (in Dobree v. Napier.)

the line of action marked out for them by the law and policy of their own country. But enactments of this kind have a value independent of their coercive operation. They amount to a standing protest against the intrusion of belligerent operations into neutral territory; they are a pledge of impartiality on the part of the neutral in the treatment of the belligerents, as far as the words of a law can give

one.

681

XXXIII-ON COMMERCIAL BLOCKADES. By J. WESTLAKE, ESQ., BARRISTER-AT-LAW.

[On November 7th, 1862, Mr. Westlake read a paper before the Juridical Society, entitled "On the Proposed Alterations in the Law of Blockade." By November 24th, when the discussion of that paper was resumed, Mr. Westlake had placed in the hands of members a pamphlet, entitled "Commercial Blockades, considered with reference to Law and Policy," in which the argumentative part of the paper was much extended but the historical part omitted. As the paper now appears, the historical part has been restored and enlarged, and the whole thoroughly revised and in parts even recast, but without any alteration in the doctrines advanced.]

THE question of abolishing commercial blockades has been presented under circumstances which at least demand for it an attentive consideration.

At the Paris Congress of 1856, the great European powers mutually stipulated the abolition of privateering. The government of President Pierce declined to bring the United States into that agreement, unless the private property of belligerent subjects was declared free from capture on the seas, except in the cases of breach of blockade and carriage of goods contraband of war. This proposal, which is commonly identified with the name of Mr. Marcy, the Secretary of State through whom it was made, not having been immediately accepted by the European powers, time was given for the government of President Buchanan to add to it, in 1859, the farther condition of the abolition of commercial blockades. Mr. Cass, the new Secretary of State, announced this condition in his instructions to the ministers of the United States, which were read by them to the foreign ministers at the courts where they resided, and contained the following passage:

"The blockade of an enemy's coast, in order to prevent all