MARITIME RIGHTS OF

BELLIGERENT NATIONS, RELATIVE TO NEUTRALS.

THE HE case of the Maria Swedish merchantman, lately heard in the Court of Admiralty, before Sir WILLIAM SCOTT, being in all its circumstances (except the incident of an actual engagement taking place) similar to that of the Danish convoy lately captured, and the question being of the highest importance to this country, and most likely to be decided by that ultima ratio to which recourse must of necessity be had, when the law of nations is violated, we think it will gratify our readers to present them with an extract from the judgment of the Court of Admiralty.

Having stated the case of the Swedish Ship, the learned Judge proceeded to reason upon it as follows:

The actual state of the fact being ascertained, it is proper for me to examine what is the legal statement, in other words, to what considerations are neutrals justly subject, according to the law of nations; for which purpose I state a few principles of that system of law which I take to be incontrovertible.

1st. That the right of visiting and searching merchant Ships upon the high seas, whatever be the Ships, whatever be the cargoes, whatever be the destinations, is an incontestible right of the lawfully commissioned cruisers of a belligerent nation. I say, be the Ships, the cargoes, and the destinations what they may because, till they are visited and searched, it does not appear what the Ships, or the 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. This right is so clear in principle, that no man can deny it who admits the legality of maritime capture; because if you are not at liberty to ascertain by sufficient inquiry whether there is property that can legally be captured, it is impossible to capture.Even those who contend for the inadmissible rule, that free Ships make free goods, must admit the exercise of this right, at least for the purpose of ascertaining whether the Ships are free Ships or not. The right is equally clear in practice; for practice is uniform and universal upon the subject. The many European treaties which refer to this right, refer to it as pre-existing, and merely regulate the exercise of it.-All writers upon the law of nations unanimously acknowledge it, without the exception even of Hubner himself, the great champion of

neutral privileges. In short, no man in the least degree conversant in subjects of this kind has ever, that I know of, breathed a doubt upon it.

"The right must unquestionably be exercised with as little of personal harshness and of vexation in the mode as possible; but soften it as much as you can, it is still a right of force, though of lawful force -something in the nature of civil process, where force is employed, but a lawful force, which cannot lawfully be resisted.

"2dly. That the authority of the Sovereign of the neutral country being interposed in any manner of mere force, cannot legally vary the rights of lawfully-commissioned belligerent cruisers; I say le gally, because what may be given, or be fit to be given, in the adaninistration of this species of law, to considerations of comity, or of national policy, are views of the matter which, sitting in this court, I have no right to entertain. All that I assert is, that, legally, it cannot be maintained, that if a Swedish commissioned cruiser, during the wars of his own country, has a right by the law of nations to visit and examine neutral Ships, the King of England, being neutral to Sweden, is authorised by that law to obstruct the exercise of that right with respect to the merchant Ships of his country. I add this, that I cannot but think, that if he obstructed it by force, it would very much resemble (with all due reverence be it spoken) an opposition of illegal violence to legal right. I am not ignorant, that amongst the loose doctrines which modern fancy, under the various denominations of philosophy and philanthropy, have thrown upon the world, it has been within these few years advanced, or rather insinuated, that it might possibly be well if such a security were ac cepted. Upon such unauthorised speculations it is not necessary for me to descant: the law and practice of nations (I include particularly the practice of Sweden when it has happened to be belligerent) give them no sort of countenance; and until that law and practice are new-modelled in such a way as may surrender the known ancient rights of some nations to the present convenience of other nations, (which nations may, perhaps, remember to forget them, when they happen to be themselves belligerent) no reverence is due to them; they are the elements of that system, which, if it is consistent, has for its real purpose an entire abolition of capture in war—that is, in other words, to change the nature of hostility, as it has ever existed amongst mankind, and to introduce a system of things not yet seen in the world, that of a military war, and a commercial peace.

"3dly. That the penalty for the violent contravention of this right, is the confiscation of the property so withheld from visitation

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and search. It is a principle, not only of the civil law, (on which great part of the law of nations is founded) but the private jurisprudence of most countries in Europe-that a contumacious refusal to submit to fair inquiry infers all the penalties of convicted guilt.— Conformably to this principle we find in the celebrated French Ordi. nance of 1688, now in force, Article 12, "That every vessel shall be good prize in case of resistance and combat ;" and Valin, in his smaller Commentary, p. 81, says expressly, that although the expression is in the conjunctive, yet that the resistance alone is sufficient. He refers to the Spanish Ordinance in 1718, evidently copied from it, in which it is expressed in the disjunctive, "in case of resistance or combat." And recent instances are at hand and within view, in which it ap pears that Spain continues to act upon this principle. The first time in which it occurs to my notice on the inquiries I have been able to make in the institutes of our own country respecting matters of this nature, except what occurs in the Black Book of the Admiralty, is in the Order of Council 1664, Article 12, which directs, "That when any Ship met withal by the Royal Navy, or other Ship commissioned, shall fight or make resistance, the said Ship and goods shall be adjudged lawful prize."-A similar article occurs in the Proclamation of 1672. And it is observable that Sir Robert Wiseman, then the King's Advocate-General, who reported upon the Articles in 1673, and expresses a disapprobation of some of them as harsh and novel, does not mark this article with any observation of censure. I am therefore warranted in saying, that it was the rule, and the undisputed rule, of the British Admiralty. I will not say that that rule may not have been broken in upon in some instances by considerations of comity or policy, by which it may be fit that the administration of this species of law should be tempered in the hands of those tribunals which have a right to entertain and apply them; for no man can deny that a State may recede from its extreme rights, and that its supreme councils are authorised to determine in what cases it may be fit to do so, the particular captor having in no case any other right or title than what the State itself would possess under the same facts of capture. But I stand with confidence upon all fair principles of reason-upon the distinct authority of Vattel-upon Institutes of the great maritime countries, as well as those of our own country when I venture to lay it down, that by the law of nations, as now understood, a deliberate and continued resistance to search, on the part of a neutral vessel to a lawful cruizer, is followed by the legal consequence of confiscation,"

A CIRCUMSTANTIAL NARRATIVE

OF THE TRANSACTIONS ON BOARD

HIS MAJESTY's SHIP RESISTANCE,

CAPT. E. PAKENHAM, COMMANDER,

From December 1797, to the Time of her Blowing up in the Straits of Banca, July 24th, 1798; with the subsequent Escape and Deliverance of four of her Crew, the only Survivors of that Catastrophe.

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IN consequence of certain intelligence brought from the Eastward by Captain Shepherdson, of the Venus, that a part of the crew of an English ship of war (supposed to be his Majesty's ship the Resistance), which had the misfortune to be blown up in the Straits of Banca some months before, had been picked up by some pirate prows and carried to Lingan, where the survivors still existed in a state of slavery, Major Taylor, commanding the garrison of Malacca, immediately dispatched a prow to that island, for the relief of those unfor

tunate men.

In this prow, suitably stored with supplies, he sent a sepoy, who being well acquainted with the Malay tongue, was charged with a letter to the Sultan of Lingan; entreating that Prince to assist in the most effectual measures for the recovery and release of such of the Resistance's ship's company, as he might be able to discover in this calamitous situation.

On the 5th of December the prow returned to Malacca, bringing with her one seaman, late of the Resistance's crew, from the declaration of whom the following Narrative is taken.

The detail given by this man appears entitled to the greater share of credence, as no deviation from the circumstances related in his story was to be found upon the several interrogatories put to him from time to time afterwards. It comes very near to the floating report which Captain Shepherdson had of the Malays at Rhio; and coincides remarkably in many of its principal points with that which had already come round to Malacca from Pinang, as there related by his three comrades, who had not less providentially arrived in safety at that settlement.

As the complexion of the several unpleasant situations, if not actual distresses, into which the Resistance was eventually cast; and as the sad disaster itself of that ill fated ship seems to derive much of its tincture, or may perhaps be deemed to have originated, with the gale which she encountered almost a year ago in the Pacific Ocean, on her way to China; her story is on that account brought down from a Wol. IV.

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date more remote than it may probably appear of sufficient interest to the public that it otherwise should be.

In such a case, candour will be nevertheless disposed to make due allowances for (if such it should prove) a too minute and circumstantial account of whatever might seem, though remotely, to affect or concern the loss of so valuable a Commander, offi.ers, and ship's company, as perished in the Resistance; when the Recorder of this mournful Narrative (taken by himself from the lips of the person here mentioned) adds. that while his country has to lament, as it must deeply feel, the misfortune of that intelligent, gallant, and worthy Commander, it is not less his mournful task to mix the tear of private friendship and sincere esteem for that officer in the individual; and for more than one active and deserving character besides, serving with him, whose memory will ever remain not less dear, than their cruel fate is to be regretted.

Thomas Scott, seaman, aged 22 years, a native of Wexford in Ireland, relates on examination as follows:

That he formerly belonged to the Chesterfield South-Sea whaler; from which he remained at Timor Besar for three years, in the Dutch emp'oy, till the capture of that place, when he entered on board the Resistance.

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That she met with a heavy gale of wind on the December, which continued for four days unabated; and in which she proved so leaky that her chain pumps were kept constantly at work, night and day; at length, in order to lighten her, they were obliged to heave a number of her upper-deck guns overboard. She then bore away for the Philippines, intending, as he believes, afterwards to sail for Malacca. Being in want of wood, water, and provisions, Captain Pakenham tried the expedient of hoisting Spanish colours, as he cruised along shore, till he came to anchor nearly within reach of the guns of Antego. The Deputy Governor of this town, and the Captain of a Spanish brig, then lying at anchor in the Bay, accordingly came off to them; but discovering their mistake when too late, upon endeavouring to escape, were soon brought back and put on board by a boat from the Resistance. Upon their assurances that they would do their utmost to have the wants of Captain Pakenham amply supplied, he generously suffered them to return the same evening to the shore. No part, however, of the e fair promises being fulfilled, nor the likelihood of it, at five o'clock the next evening, Captain Pakenham sent his third Lieutenant, Mr. Cuthbert, in the cutter, with an armed party, to cut out the Spanish brig; in which attempt they succeeded, though fired upon smartly by the guns of