The Sun.
London, England, 1864-06-16 00:00:00

There was no occasion for Mr Seward to endeavour to
sneak into this declaration after the war, in the hope that
by becoming a party to it Great Britain would illogically
hold that the Confederate States, now acknowledged as bel-
ligerents, would be bound by the act of their enemy. The
British Foreign Secretary knew his business better than
this, With the most commendable sagacity he took care of
his logic and his friend Mr Seward at the same time, and
accomplished the object of the Federal Government by his
orders in Council, without permitting its Minister to humi-
liate himself.
This was one result of the declaration of neutrality—An-
dice partiality--put forth by Great Britain. But the mis-
chief did not end here. The Confederate States being com-
pelled to restrict their operations upon the high seas to their
ships of war, those ships were also seriously embarrassed by
this declaration. Their inability to adjudicate their prizes
has already been referred to. As a consequence of this ina-
bility they could make no beneficial use of them. Not only
so, they were compelled in many instances to release them on
ransom bond for the benefit of neutrals—that is to say, to
give neutral claimants of cargoes an opportunity after the
war, when the bonds should be sued upon, to vindicate their
claims in a court of justice, which opportunity their own
Governments had denied to them during the war byrendering
it impossible for them to gu before a Confederate price court.
The release of these vessels operated strongly, too, in favour
of the enemy. For it amounted to a loan to him of so
much property, of which he had been rightfully deprived.
with which to carry on the war—his bonds in the meantime
being of no use to the captors, as it was impossible to col-
lect them until after the war. This double mischief, there-
fore, ensued in these bond cases—the enemy continued to
carry on his commerce, and commerce to a belligerent is
strength; while the captor's means, quoad the war, were
not increased by his captures. The reader will now see why
as few of these ships as possible were released on bond, the
release being confined to those cases in which an apparent
bona file natural claim was presented on the face of pro-
perly prepared papers. Nevertheless, to show the good
faith with which the captor must have acted towards neu-
trals in this matter, every ship destroyed by him was so
much property destroyed against his own interest—for the
ship being destroyed, no prize money could be realised,
whereas the bond would be valuable to him at the end of
war. And although it was to,be presumed that every officer
would, from a sense of duty, destroy as many of his prizes
as possible, yet we see that at least he had no private inte-
rest to urge him to destroy them when there was a question
of neutral rights, his leaning being, in fact, the other way.
This, then, is the working of those British orders in
Council which, on the face of them, appear to be entirely
unexceptionable. Stripping off the diplomatic disguise of
language, which is so thin and transparent that the wonder
is that it should have been resorted to at all with the hope
of concealment—more unjust, oppreesive, and unneutral
orders could not have been devised. If the practical effect
of these orders is such as I have stated, what excuse can be
offered for adopting them ? Can it be said that no other
course was open to the British Government under the laws
of nations ? If so, that would bo a sufficient excuse—for
where a Government has no alternative it would certainly be
unjust to hold it responsible for all the consequential damages
of its acts. It might be said with truth, in reply to our com-
plaints, " We were obliged, under the laws of nations, re•
gulating and controlling our neutrality, to exclude your
prizes from our ports ; and, if by reason of your inferior
naval force, and the consequent blockade of your ports, the
rule operates more harshly upon you than upon the enemy,
that is your misfortune, not our fault." But the fact is,
there is no such excuse to offer. It was, at least, equally as
open to Great Britain to admit as to exclude our prizes, as
I will now proceed to show. The practice of nations has been
various on this point, and it rests in the discretion of each
nation to admit prizes into its ports or to exclude them, as
it may think fit. This seems to be the general understanding
of the law on this question, although there is very respectable
authority for the opinion that a nation cannot lawfully
exclude tho prizes of a belligerent without previous treaty
stipulations to that effect.—" Locceniue de Jure Maritimo,"
L2,c4, s 7. As a general rule, belligerent nations have
not favoured the carrying of their prizes into neutral ports,
and the reasons are obvious. It is much more convenient
for the prize courts that they should have the actual custody
of the prize to be adjudicated. And the bringing in of prizes
to the home ports gives the subjects of the captor an oppor-
tunity of dealing in prizo property, an object of no small
importance in a maritime war where many valuable captures
are made, It gives the Government, too, the advantage of
buying in such ships as it may wish to equip for the
purposes of war, an advantage of which the Federal States
have frequently availed themselves during the present war.
Hence, belligerent nations have generally required their
cruisers to bring their prizes into the home ports. Still, in
cases where the contrary practice was convenient, nations
have freely availed themselves of it, without let or hindrance
from neutrals, unless there was a treaty in the way. In
farmer wars in which Great Britain has been concerned,
Leghorn and Lisbon were frequentlyltaade use of for this
purpose; the prizes being condemned and 'sold without
ever reaching the home ports at all. But taking the modern
practice to be for the neutral to admit or exclude prizes at
pleasure, the presumption always is, previous to the issue
by the neutral of any order on the subject, in favour of
the amuission—this having been the more common
practice. On this point see " Wheaton's Elements (Law-
rence, p. 428 ; see also 3, " Phillimore's International
Law," p. 498, sec. 393. The treaties between nations on
this subject haVe been as various as the practice. In 1773
a treaty was entered into between France and the United
States, whereby no ship of the enemy of either party was
allowed to sell her prize,, or discharge her cargo, or buy
more provisions than immediately indispensable, in the ports
of the other.
In 1800 a similar treaty was entered into by the same

parties,
In 1794 a treaty of exclusion was made between England
and the United States.
In 1806 a treaty was made between the same parties, con-
taining similar provisions.
In 1782 a treaty was entered into between the United
States and Holland, then one of the principal maritime
Powers, whereby the sale of prizes brought by either party
into the ports of the other was legalized.
In 1742 a treaty was made between Spain and Denmark
authorizing the reception and sale of prizes reciprocally
and so late as 1329 a treaty was ratified between Holland
and the Republic of Colombia authorizing the reception of
prizes into each other's ports.
Now, if the treaties between Great Britain and the United
States were still in existence, there is. no doubt that Great
Britain would be obliged under those treaties to apply the
rule of exclusion to the Confederate States ; but it wit; be
remembered that a war occurred between the two contract-
ing parties in 1812, subsequently to the formatfon of those
tree.ties, which abrogated them ; and the subject has not
since been renewed either in the Treaty of Ghent, which
put an end to that war, or in any subsequent treaty. The
ignoring of such a question, after it had once been made
the subject of a treaty, places in a very strong light the in•
tention of the parties to remain perfectly free to exercise
their discretion for the future. Great Britain, then, has no
excuse for the unjust and unneutral course she has pursued,
She can neither affirm that she had no alternative under the
laws of nations, nor that she was bound by any treaty obli-
gation.

One more question, which has already been incidentally
noticed, remains to be disposed of. If Great Britain had
permitted the entry of prizes Into her ports, would this
have enabled the captors to condemn them so as to give an
indefeasible title to the purchaser ? Without doubt. Not-
withstanding Lord Stowell, in the case of the " rlad Oyen"
(1 Rob., pp. 139.142), declared the practice (he was com-
menting on the practice of the French courts, in the heat
of a French war, and every lawyer knows the vim with
which his lordship assailed everything French) to be " in-
frequent and irregular," it is novi well rattled that a belli-
gerent Prize Court, sitting in its country, may adjudicate a
prize lying in neutral waters, provided the posseselott of the
captor remains. And this position seems to be as unanwer'
able in principle as it is well settled in practice. The pro-
ceeding in a prize case is in rem, and to give the court
jurisdiction it is only necessary that it should have possession
of the prize. Bat this need not be actual possession by the
officers of the court, as by the marshal and his bailiffs. It
is sufficient if the captor, or his duly appointed agent, has
possession, because his possession is that of the Government
under whose authority the court sits, as effectually as would
be that of the marshal; and no principle is better settled
than that a neutral Government has no right to interfere
with the captor's possession of his prize—the case only
excepted of the capture having been made within the waters
of the neutral territory, So that if the prize be admitted
into the neutral port at all—and the argument proceeds
upon that hypothesis—the captor's possession remains as
firmly Established as if ho and his prize were in his own
country. In support of this jurisdiction of the Prize Court
I quote the following authorities : —ln 111, Phillimore's
International Law, p. 482, it is said ;—" An attentive
review of all the cases decided in the Courts of England
and the North American United States during the last war
(1812) leads to the conclusion that the condemnation of a
capture by a regular Prize Court, sitting in the country of
the belligerent, of a prize lying at the time of the sentence
in a neutral port is irregular, but clearly valid. It appears
to be the inclination of the English Prize Court during
the presant war (Russian) to limit to cases of necessity
the condemnation vessels lying in a neutral port.
It is scarcely necessary to add, after what has been said as
to the forneer French law on condemnations by judges of
the belligerent in neutral ports (that is, the judge, and the
prize both bei., g in the neutral port), that such conde?art:.
tione of vessels lying in neutral ports are holden valid y
the French Prize Courts," Again, in the volume already
quoted, p. 426, it is said, " The courts of the North Amen.
can United States allow that property may be condemned
in the courts of the captor while lying in a neutral country,
but still they hold that it can only be so adjudicated
upon
while the possession of the captor remains ; for if it be
divested, either in fact or by operation of law, that posses-
sion is gone which can alone sustain the jurisdiction. And
it is to be observed that, a fortiori, where the property is
already in the custody of a neutral tribunal, and the title is