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The rights of joint-capture by the concert and mate. rial co-operation of vessels which are neither in sight, nor within signal distance, at the time of the capture, of course remain unaffected by the statute provision.
In several important cases of capture made in the Gulf of Mexico, by the United States vessel of war New London, during the present war in the Uni. ted States, the public ships, Massachusetts and R. R. Cuyler, were admitted, by judicial decree, to the rights of joint-captors, though not in sight or within signal distance when the captures were made, solely in recognition of their rights as co-operators, by previous concert.
RESCUE [In the former edition of this work, it was stated, that if a neutral vessel of commerce should be captured by a belligerent cruiser, and a small force be placed on board, with a prize master, to carry her into port for adjudication, an attempt on the part of the master and crew of the captured vessel should be made to effect a rescue; such attempt would, of itself, subject tbe vessel to condenination, which might otherwise be entitled to restitution.
Such is unquestionably the well-settled law of nations.
It is thus distinctly declared, by that learned master of prize law, Mr. Justice Story, in his brief but valuable treatise on prize law, published in the American Encyclopedia.?
'Vide MS. Decisions—the steamer Henry Lewis, the steamer Anna, and seven other vessels-U. S. Dist. Court, New York.
* Am. Enc., Vol. 10, p. 350.
“The right of search draws after it the right to capture and send in the visited ship for adjudication, whenever (though the ship and cargo are under neutral papers) there are circumstances of just suspicion, as to her real character.
“The neutral, under such circumstances, is bound to submit, and wait the regular result of the adjudication of the proper tribunals. If, after the capture, the neutral crew rise, and regain the neutral ship from the possession of the captors, that alone is a hostile act; and however innocent in other respects the ship and cargo may be, they are justly subjected thereby to confiscation.”
A lawful rescue can only be made by a captured belligerent.
Such a rescue is deemed a meritorious act, because purely voluntary on the part of those cap. tured, and not their duty, as is that of recapture, which is the recovery by a friendly force, of a prize taken by, and in the possession of, an enemy.
Such being the established rule of international law, its repudiation was not to be expected on the part of a great nation whose authorities and precedents have, more largely than any other, contributed to the erection of that beautiful fabric, which upholds the great commonwealth of civilized states.
The British ship, Emily St. Pierre, in attempting to violate the blockade of the port of Charleston, South Carolina, was captured by a lawful cruiser of the United States government.
A prize master, with a small force, were placed on board, and proceeded to conduct the prize into a port of adjudication.
Relying too much upon the good faith and sense
of obligation to the supreme law, of the captured master and his crew, the captors humanely forebore to render an unlawful rescue impossible, by a confinement of their persons.
Had any well-grounded suspicions existed, of a want of that integrity, which the captors had a right to require, their rigid confinement would have been perfectly justifiable.
Taking advantage of their superior numbers, and of the generous but misplaced forbearance of the captors, the captured master and crew, forcibly and fraudulently, regained the possession and control of the ship, and with the prize master, and his small force on board, proceeded with her to Liverpool, England.
Arriving there, it might not unreasonably have been expected, that the public authorities, indignant at this flagrant outrage by a neutral upon belligerent rights, would have needed no prompting to in. duce their immediate and efficient vindication of the violated law.
But the ship was a British ship, and was laden with a cargo which served to feed British manufactories. And this infraction of public law, this act so criminal by the law of nations, as of itself to subject the vessel and cargo to confiscation, was hailed, by common consent, as an act of commendable bravery, not only lawful, but highly merito rious and honorable.
At public assemblages, receiving the sanction of public men, this British ship master and his crew, were laden with encomiums, and rich pecuniary rewards, and the world has yet to learn of the utterance of any word of disapprobation of this
hostile act, by the neutral nation of the guilty subjects.
The minister of the belligerent nation, resident at the Court of St. James, lost no time in calling the attention of Her Majesty's government to the subject. The writer has not had an opportunity of consulting the correspondence which ensued between Mr. Adams and Earl Russell—but it is understood that the expectations expressed by the for. mer, that the British government would direct the surrender of the captured property, and the arguments and authorities urged as the basis of his ex. pectations, were met by a peremptory denial of the obligation on the part of the latter.
Upon the commencement of the civil war in the United States, Great Britain hastened to announce her position, as that of neutrality, between lawful belligerents.
The proclamation of the Queen was forthwith issued, in which it was said: “We have declared our royal determination to maintain a strict and impartial neutrality in the contest between the said contending parties.” And again, in this same proclamation, the British queen says: “We do hereby warn all our loving subjects, and all persons whatsoever, entitled to our protection, that if any of them shall presume, in contempt of this, our royal proclamation, and of our high displeasure, to do any acts in derogation of their duty, as subjects of a neutral sovereign in the said contest, or in violation or in contravention of the law of nations, as for example," “by breaking or attempting to break any blockade, lawfully and actually established by or on behalf of either of the said contending parties, all persons so
offending, will incur and be liable to the several penalties and penal consequences, by the law of nations in that behalf imposed and decreed.”
And in the same proclamation the British queen adds :
“And we do hereby declare that all our subjects, and persons entitled to our protection, who may misconduct themselves in the premises, will do so at their peril, and of their own wrong, and that they will in no wise OBTAIN ANY PROTECTION FROM US against any liabilities or penal consequences, but will, on the contrary, incur our high displeasure by such misconduct.”
If the law of nations, upon the subject of the rescue of a captured neutral vessel, for the violation of a belligerent blockade, has been here correctly stated, it would be a hopeless task to reconcile the course of the British government in the case of the Emily St. Pierre, with a sincere regard for the obli gations of neutrality under the law of nations, or with the solemnly proclaimed determination of the British Queen, that her subjects offending against that law, “will in no wise obtain her protection."