Sect. III. Of the

Commerce.

observed: the sufferer must first apply to the Lord Privy Seal,
and he shall make out letters of
Detention, Sei-
under the privy
request
zure, Capture,
seal; and if, after such request of satisfaction made, the and Confiscation,
party required do not, within convenient time, make due satis- by Belligerents,
of Property
faction or restitution to the party grieved, the Lord Chancellor employed in
shall make him out letters of marque under the great seal, and by
virtue of these, he may attack and seize the property of the ag
gressor nation, without hazard of being condemned as a robber
or pirate." The case provided for by this statute, is only the case
of injuries done to subjects by foreigners during peace; but the
letters of marque which are granted during war, are also, says
Molloy (1), grantable with the approbation of the King, or coun-
cil, or both; and I am inclined to think one reason of commit-
ting such a prerogative to the crown may be this,-that as the
property of a ship, taken without a letter of marque, vests in the
King (2), he ought, in justice, to have a discretion by himself,
or his officers, as to the persons who shall thus take out commis-
sions thus tending to abridge his revenue.

Letters which have been so granted, may be vacated in three
ways; by express revocation, or by a cessation of hostilities be-
tween the nations which they affect, or by the misconduct of the
grantees. Letters granted during war, having usually been de-
signed only for the general annoyance of the enemy, may be
vacated by the mere express revocation of his Majesty. But with
regard to letters granted during peace, by way of reparation to
subjects for losses actually sustained by them from foreigners,
these, says Molloy (3), can be revoked by no domestic act of the
government, because, after the person injured has petitioned,
and made legal proof of his loss, and letters of request have gone,
and no reparation been made, then the letters of reprisal being
sealed, create and vest a national debt in the grantee. Even this
claim, however, is defeated by the cessation of hostilities, as
appears from a case decided by the Lord Chancellor Notting-
ham (4). The defendant, as executor, was entitled to letters of
reprisal, granted by the king, for a great sum of money, and
containing a clause, that no treaty of peace should prejudice
them. But his Majesty afterwards, by several treaties of peace
with the Dutch, expressly articled that they should not be dam-
nified by these letters patent. The question was, whether the

(1) Molloy, B. 1. ch. 2. s. 10. (2) Vin. Ab. Prerog. N. a. pl. 22.

(3) Lib. 1. ch. 2. s. 8.

(4) 2 Wooddes. 440. 1 Vern. 54.

Sect. III. Of the King could, by any treaty of peace, annul, or, in the technical Detention, Seizure, Capture, phrase, amortise this instrument. That great judge was of opiand Confiscation, nion that letters of reprisal might be revoked and amortised by a by Belligerents, of Property truce, and by letters of safe-conduct, and a fortiori by a treaty employed in of peace. It seems just and reasonable, that, after a solemn raCommerce. tification of amity between nations, no retrospect of private grievances, unprovided for by the convention, should be allowed.

The third method in which letters of marque may become vacated, is by the misconduct of the grantees. In the case of the Mariamne (1), Sir William Scott laid it down that cruelty works a forfeiture of the letters of marque; and this he affirmed to be the ancient law of the Admiralty, of which the Prize Act, containing the same provision, was to be taken as a formal declaration. "During the contest," said he, "destruction is necessary and lawful; but it is contrary to every principle of the law of nations, that after the contest has ceased, hostile and destructive force should still be continued."

The Prize Act 43 Geo. 3. (2) contains several provisions for the revocation of letters of marque; which being regulations of a nature merely municipal, may be made and varied at the will of the legislature, whose power, of course, is paramount even to the prerogatives of the crown. It has been decided (3) that a subject of the King cannot take goods belonging to the subjects of a prince in amity with the King, by virtue of letters of marque granted by any other sovereign or state.

But letters granted by the King of this country are not construed strictly against the subject: for in the case of the Sacra Familia (4), it was decided that a vessel cruizing under letters of marque against one state, as for instance, against France, is at liberty, on obtaining notice of hostilities commencing against another, as for instance against Spain, to capture a Spanish vessel, with as full advantage to herself as if the prize had been French. In cases of recapture, no letter of marque from the King is required, to give to the recaptor the benefit of the same salvage to which he would have been entitled if he had been provided with letters of marque (5). The King, however, has the

(1) 5 Rob. Rep. 9.

(2) 43 G. 3. c. 160.

(4) 5 Rob. Rep. 360.

(5) The Helen, 2 Rob. Rep.

(3) Walton v. Hanbury, 2 Vern. 224.

right of releasing any prize previously to its condemnation. This,
said Lord Ellenborough, in the case of Sterling v. Vaughan (1),
is an implied exception in the grant of prize by the crown.

66

Sect. III. Of the Detention, Seizire, Capture, and Confiscation, by Belligerents, of Property

Commerce.

The doctrine as to embargoes preceding hostilities, is not pe- employed in culiar to the British coasts. Its principle has been acknowledged amongst all nations, and forms the basis of the right of reprisals. "Reprisals," says Vattel (2), are used between nation and nation, in order to do themselves justice, when they cannot otherwise obtain it. If a nation has taken possession of what belongs to another, if she refuses to pay a debt, to repair an injury, or to give adequate satisfaction for it, the latter may seize something belonging to the former, and apply it to her own advantage, till she obtains payment of what is due to her, together with interest and damages; or keep it as a pledge till she has received ample satisfaction. In the latter case, it is rather a stoppage, or a seizure, than reprisals; but they are frequently confounded in common language. The effects thus seized on are preserved while there is any hope of obtaining satisfaction or justice. As soon as that hope disappears, they are confiscated, and then the reprisals. are accomplished. If the two nations, upon this ground of quarrel, come to an open rupture, satisfaction is considered as refused from the moment that war is declared, or hostilities commenced; and then also the effects seized may be confiscated."

"In reprisals," continues the same author (3), we seize on the property of the subject just as we would on that of the state, or sovereign; every thing that belongs to the nation is subject to reprisals, whenever it can be seized, provided it be not a deposit intrusted to the public faith. As it is only in consequence of that confidence which the proprietor has placed in our good faith, that we happen to have such a deposit in our hands, it ought to be respected, even in case of open war; such is the conduct observed in England, and elsewhere, with respect to the money which foreigners have placed in the public funds."

Reprisals thus understood and authorized, are made in two ways, either by embargo, as we have already seen, in which case the act is that of the state, or by letters of marque and reprisals, in which case the act is that of the subject, authorized by the

(1) 11 East. 619.

(2) Vatt. b. 2. ch. 18. s. 342.

(3) Vatt. b. 2. ch. 18. s. 344.

zure, Capture,

Sect. III. Of the state's permission. "These words, marque and reprisal," says Detention, Sei- Mr. Justice Blackstone (1), " are synonymous, and signify a and Confiscation, taking in return. They are grantable wheresoever the subjects by Belligerents, of one state are injured by those of another, if justice be denied by that state to which the offender belongs. And the effect of the grant is to authorize the seizure of the bodies and goods of the subjects of the offending state, which may be detained till satisfaction be made, but no longer (2).”

of Property employed in Commerce.

"But by the law of nations," says Molloy (3), "letters of marque or reprisal will not authorize the molestation of ambassadors, nor of those who travel for religion; nor of students, scholars, or their books; nor of women or children, by the civil law; nor those that travel through a country, staying but a little while there, for they are only subject to the law of that place. By the canon law, ecclesiastical persons are expressly exempt from reprisals." A merchant of another place than that against which reprisals are granted, albeit the factor of such goods were of that place, is not subject to "reprisals."

Such appears to be at present the law and practice of civilized nations, with respect to hostile property in general found within their dominions at the breaking out of a war. There seems, however, something of subtlety in the distinction between the virtual and the actual declaration of hostilities, and in the device of giving to the actual declaration a retrospective efficacy, in order to cover the defect of the virtual declaration previously implied. The rule of our ancestors was much clearer and broader (4). In early times, at the beginning of a war with another country, merchants belonging to that country, and found within the realm of England, were attached indeed; that is to say, they were not permitted to go abroad. But Magna Charta provides, that this attachment shall be without harm of body or goods, with this limitation, until it be known to the King, or keeper of the realm in the King's absence, how our merchants, in the country at war with us, shall be entreated; and if our merchants be well entreated, then theirs shall be likewise with us. (5)

(1) 1 Bla. Com. ch. 7.
(2) Grot. b. 3. c. 2. Vatt.
b. 2. c. 13. 2 Wooddes. 435 to
440.

(3) B. 1. c. 2. s. 18,

(4) See Beawes Lex Merc. 6 Ed. 397. Marten's L. N. 274, 5, 6, 7.

(5) Magna Charta, 2 Inst. 58. 1 Bla. Com. 260. Bro. Ab. tit. Property, pl. 38. Skin. 204. Bac. Abr. Mercht. A.

by Belligerents, of Property employed in

Commerce.

And by the statute 27 Ed. 3. stat. 2. cha. 17. it was enacted, Sect. III. Of the that in case any dispute shall arise between this country and the zure, Capture, sovereign of any foreign land, the merchants and others of that and Confiscation, land shall not be sent suddenly out of our kingdom and territories, on account of such dispute, until they shall be warned and proclamation published: and that they shall go out of this kingdom and territory with their goods freely, within forty days after such warning or proclamation; and that in the mean time, they shall not be in any thing hindered or disturbed in their passage, or to make profit with their said merchandise, if they wish to sell them; and in default of wind or ship, or in case (from sickness or other evident cause) they cannot go out of this kingdom in so short a time, then they shall have forty other days, or more, if the King think fit, within which time they may pass conveniently with their merchandises, or sell as before. (1)

Choses in Action

But though the law of our ancestors thus appears to have sur- Contracts and passed, in liberality, the institutions of their modern descendants, how affected by with regard to hostile property found within this realm in the War. actual possession of the enemy; yet, with respect to property belonging to the enemy, but not actually reduced into his possession, such as debts which may be due to him, or contracts entered into with him, our law, at this day, pursues a policy of a more liberal character. When Alexander, by conquest, became master of Thebes, he found, among the treasures of the conquered, an engagement from the Thessalians to pay a hundred talents; the Thessalians having served with merit in his army, he gave up the engagement to them, and thus remitted the debt. Vattel (2), after citing this case, observes, that "the sovereign has naturally the same right over what his own subjects. may owe to enemies. He may, therefore confiscate debts of this nature, if the term of payment happen in time of war; or at least, he may prohibit his subjects from paying while the war continues." The latter course has been adopted by the British law. We suspend the right of the enemy to the debts which our traders may owe to him, but we do not annul it; we preclude him, during war, from suing to recover his due; for we are not to send treasure abroad for the direct supply of our enemies in their attempts to destroy us; but, with the return of peace, return the right and the remedy. This doctrine of the

(1) Beawes, 38.

(2) Vatt. b. 3. ch. 5. sect. 77.