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fiftance to such a fearch does not incur the penalty of confifcation, and to show that the circumstances of this cafe, of the Swedish convoy, do not amount to a refiftance, but only to a threat, which never was carried into effect. He laftly, on what he terms the material ground of confifcation, contends that the cargoes (which were fhip-timber, hemp, pitch, and tar) could not be deemed "warlike contraband stores.' moft of his reasonings on these topics are stated in the answer of Dr. Croke, it is the lefs neceffary to detail them here.

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Subjoined to this tract is the fentence of Sir W. Scott, already ftated, and an account of the cafe of Saleucci v. Johnfon, from Mr. Park's Treatife on Infurance; in which the three puifne Judges of the King's Bench (in the abfence of Lord Mansfield) held, that where a neutral thip had been condemned for refifting the fearch of a cruizer, the underwriters could not avail themselves of this condemnation in their defence.

ART. XI. Remarks on Mr. Schlegel's Work upon the Vifitation of Neutral Veffels under Convoy. By Alexander Croke, LL. D. Advocate in Doctors' Commons. 8vo. 157 PP. 4s. White. 1801.

WE now proceed to examine the able anfwer of Dr. Croke; an answer which, perhaps, would scarcely have been neceffary had this been merely a literary controverfy, and were it submitted to the learned and judicious alone. But the honour of the British nation required that arguments, however weak, which flowed from refpectable authority, and feem to have been fanctioned by the governments who advanced the claims, fhould be fhown to the world in their true light, and that the cause of Britain should be fupported as much by the force of her arguments, as by the vigour of her arms.

After a few preliminary obfervations, on the motives and conduct of fome of the neutral nations, Dr. Croke expreffes the embarrassment which he feels in answering Mr. Schlegel's work, from the loose and indefinite statements contained in it, and the difficulty of understanding what are the real reprefentations in matter of hiftory, and the precife pofitions in point of law, by which he means feriously to abide."

The particular cafe of the Swedith convoy, Dr. C. declines to confider minutely; as it is ftill depending (on an appeal) before the fupreme court of the law of nations in this country. What he chiefly confiders is the general principles on the fub

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-ject of capture which Mr. Schlegel has introduced: and here: he declares his aftonifhment, that "any partial or occafional · intereft of any particular country fhould have induced a Profeflor of Univerfal Law, and a Judge of a Supreme Court, to maintain in the face of Europe pofitions which he himself, and every man in it, cannot but know to be contradictory to all acknowledged authority, as well as all rational principle, upon the fubject."

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Of this kind he denominates the affertions of Mr. S. that "it is contrary to the law of nations to feize and confifcate property belonging to the individual fubjects of the enemy,' to employ thips of war in capture," and, thirdly," to feize the goods of enemies on board of neutral veffels."

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On the first of thefe pofitions, Mr. S. having contended, that war is carried on between government and government, and not between private individuals, whofe property therefore ought not to fuffer," Dr. Croke afks,

"Is there a principle more universal than that all the members of a ftate are answerable for the injuftice of the government to which they belong, whofe acts are, in all legal and political confideration their acts? It has been referved to the mifchievous policy of the French Republic to feparate the governed from the governors, and to attempt. a diftinction in their confideration and treatment of them. But furely it is the most elementary of all principles, that every individual įs bound by the acts of his government to foreign ftates: every fubject of a ftate at war is, by the univerfal policy of all law, an ali n enemy to every fubject of the hoftile ftate, and in all legal confideration is fa treated. It is very true that nations at war do, for their own convenience in keeping in their own hands the direction of the public force, ufually difcourage their fubjects, not fpecifically authorised by themfelves, from engaging in acts of hoftility; it is likewife true that mo tives of private humanity and courtely do, in a variety of cafes, prevent the exercife of the moft indubitable hoftile rights. But every man, whofe mind is tinctured with the first principles either of general law, or of the inftitutes of particular countries, knows extremely well that these are mere relaxations and exceptions arifing out of other caufes, which do not conftitute the law, but prove the contrary tenor of the law by the very circumstance of their being relaxations and exceptions. I venture to affume, as a principle placed beyond the reach of all contradiction, that war is waged not between government and government, but between nation and nation, and the individuals of each; and that to prove this by authorities, would merely be to tranf cribe every book that has been compofed upon the fubject." P. 15.

The next pofition demonftrated by Dr. Croke, and indeed refulting from the former, is, "that the property of individuals is legally anfwerable for the injuftice of their government." There feems not indeed, as he obferves, to be any authority, except that of Mr. Schlegel, which questions it.

In the third place, Dr. Croke infifts that "the rights of war externally against the public enemy (in which are included all his individuals) are naturally and originally unlimited."

"The practice of mankind," he admits, " influenced by confidera. tions of humanity and convenience, has agreed in confining the opera, tions of war within certain modified bounds, and that limitation is to be respected in the common exercise of hostility."

Suppofing therefore it were true," that the practice of land-war had abstained from the capture of private property," what effect would that have upon maritime capture, which is admitted to have been uninterrupted? He then fhows, that treaties between particular states are "the conventional law of those between whom they fubfift;" but that "the conventional law of nations ftands upon different grounds, and is to be found in the legal practice of all ftates not fpecially tied up by treaties upon that particular fubject." But, laftly, he shows how untrue the affertion is, that private property is actually protected from land capture, and (befides that the pillage of towns, and the feizure of booty, have always been deemed lawful exercises of the right of war) and what," he afks, "is the practice of exacting contributions, but a moderated and ftipulated exercise of the fame right, which prefuppofes its existence?"

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He afterwards explains the reafon why greater indulgence has been granted to private property in a land than in a maritime war, and proves the right of feizing the property of individual members of a hoftile ftate by, the authority of every writer on the law of nations, whofe opinions the world has been accuftomed to refpect.

The strange and novel doctrine of Mr. Schlegel, that privateering, or rather maritime capture, is unlawful, Dr. Croke treats with the contempt fuch a notion deferves; but the affertion of the Danish Profeffor," that the property of an enemy cannot be touched when on board the thip of a neutral," being more material to the question, is combated at large. It had been admitted by Mr. S. that before, and at the time when the Confolato Del Mare was compofed, the law ftood as afferted by Great Britain. The point contended by him is, that it has been altered fince; and it is aliedged that, fince that period, the writers on the law of nations have unanimously allowed the juftice of his opinion."

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"If," fays Dr. Croke," this were a matter that depended on the unauthorized fpeculations of private writers, it would be easy to meet this extravagant affertion by a direct contradiction, and by an appeal to the most respected authorities of that fort in Europe.' "But," he adds, "is it the real opinion of Mr. Schlegel, a Profeffor and Judge of the public law of Europe, that that law changes its course in contequence

fequence of every change of notion and fpeculation in private individuals who may think fit to load the world with voluminous publications upon it ""As well," he obferves, "might it be pretended, that the law of a particular country has actually undergone an alteration, because a private fubject of that country has published his opinion that fuch an alteration is fit to be adopted."

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He purfues this argument further, and (in our opinion) with great fuccefs, remarking upon the ftrange and unaccountable miftake of Mr. S. as to the conventional law of nations, which he fuppofes to take its rife from particular treaties,' and fhowing that the Dutch, far from having effected the suppofed alteration in the Law of Nations, "have uniformly, down to the prefent day, adminiftered the maritime law upon the fame principle as Great Britain, and with much lefs temper and moderation."

Doctor Croke next proceeds to inquire, whether the fuppofed alteration was effected by the armed neutrality in 1780. This period, he obferves," affords Mr. S. a fhow and femblance of fomething like an authority, which cannot well be claimed, either by the opinions of private modern writers, or by the particular provifions of Dutch treaties."

"Are we then," fays our English Advocate, "to understand, that if three or four nations, acting against their own most folemn and public obligations, take upon themfelves, by a fpecial agreement, to alter the whole courfe of the political law of Europe, that this is pretenfion the legality of which is not to be difputed even by thofe who are most severely affected by the propofed alteration? Is Mr. Schlegel prepared to admit, that if Great Britain, confeffedly the greatest maritime power in Europe, and two or three other confederate ftates were to covenant with each other that the mott momentous changes fhould immediately take place in the public law of Europe, that all Europe is bound to refpect their authority, and to take the law as they think fit to difpenfe it to the world, in confequence of their own feparate bargain? Is there nothing of inconvenience and injury in this? nothing of an unwarrantable affumption of fupremacy amongft coordinate and independent ftates, alarming to the repofe and hiberty of Europe? Surely it can never be maintained that this is a legitimate exercife of power, which is to command the confciences and understandings of the reft of mankind. Can it be matter of reafonable doubt that no fuch pretenfion can be maintained without the moft offenfive aggreffion against the common liberties of Europe, and that the ftate which rejects and refifts it is entitled to the common gratitude of every other itate in it? This would be the cafe, even if thefe contracting ftates had ftood firm to their engagements, and had contrived upon the proffered bribe of fome occafional advantage to engage the concurrence of fome other ftates of Europe: But, when the fact notoriously is, that this legislative combination of powers in the northern corner of Europe have abdicated their affumed functions,

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and that they themselves have fince acted, in the conduct of their own wars, upon principles directly the reverfe of what their modern agreement purported; who can say that fuch an agreement, fo framed and fo abandoned by the very powers which were parties to it, is entitled to be received with any other feelings than thofe of derifion on the part of other maritime ftates, who only hear of it at a diftance, but who nevertheless are expected to obey it?" P. 47.

Having further purfued this train of reafoning, and exploded the conceit of Mr. Schlegel (which we have already noticed) that "a veffel on the high feas is ftill a part of the territory of the state to whofe fubjects it belongs," the course of Dr, C.'s argument now leads him to the right of fearch exercised by belligerent powers, and to the Profeffor's affertion, that this right" has its origin in the pofitive ftipulation of treaties, and is limited in all cafes in its exercife to the regulations prefcribed." In answer to this, Dr. Croke shows that it

" is immediately deducible from the principles of natural law," that “it has always been acknowledged by nations with whom no treaties exifted,”—and that “in the treaties in which it is mentioned, it is referred to, as a known pre-exifting general right, subject only to regulation. The only limitation," he obferves," in the mode of its exercise under the original law of nations, is the end for which it is allowed,"

Under this head, Dr. Croke refutes the wild affertion of Mr. Schlegel,

"that a belligerent nation is not empowered by the rights of felfdefence to prevent the conveyance of noxious articles, and even weapons of war, for the use of the enemy, provided the neutral does this indifferently to both parties.'

"What is the extent of the catalogue of contraband," Dr. C. does not undertake to discuss, as a subject of great extent and minute detail; but he remarks that,

"fince the wars of Europe, and particularly those of maritime ftates, have become principally naval, the materials for the equipment. of hoftile fleets are liable to be fo confidered, where not protected by particular conventions, or fubjected to that moderared right, eftablished in favour of native produce, of pre-occupation, and pre-emption."

He then reprehends the unfounded calumnies admitted by the Profeffor, on the practice of our Court of Admiralty.

"All,” he observes, "that the Judge of the Admiralty has in this cafe done, has been to pronounce in effect, that the carrying naval flores with a poffible deftination to the public enemy, is a reasonable ground of detention and inquiry."

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The point next confidered by Dr. Croke, is the pretenfion fet up by Mr. Schlegel, "that the fending of an armed fhip

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