HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.
![handle is hein.slavery/ssactsengr0373 and id is 1 raw text is: [182] The first case relied on was The Betsy (1 Rob. 93). There an American
ship was found in the harbour of Guadaloupe, at the time when the island was
captured by the British forces; there were circumstances which, in the opinion of
Lord Stowell, threw great doubt upon the point whether she was neutral, or enemies'
property, and made a seizure justifiable, for the purpose of further inquiry. The
learned Judge, it is true, remarks that the question whether there was or not a
blockade in existence when the ship entered the port, was one of nicety, which had
only been recently decided by the Lords of Appeal, and required more legal dis-
crimination than could be required frorii military persons; but he does not appear to
have rested his judgment upon that ground.
The next case relied on was The Luna (Edw. 190), which is no doubt a strong
decision ; for in the case of a capture made from a neutral, under a mistaken construc-
tion, by the captors, of a British Order in Council, the learned Judge not only relieved
the captors from costs and damages, but gave them their expenses out of the captured
property.
It must be admitted that the mistake of the captors was not an unnatural one;
they thought that an Order in Council of the 26th of April 1809, which declared a
strict blockade of all ports and places under the Government of France, together
with the colonies, plantations, and settlements in the possession of that Government,
extended to St. Sebastian, in Spain, which was then, and had been for two years, in
the possession of the French.
The facts of the case are not stated in the report so fully as to enable us to form
an accurate judgment of the degree of suspicion which might really attach to the ship.
The question of expenses does not seem to have been argued, and Lord Stowell
probably felt that he was going to the very verge of the law, for he declares that he
will not allow the same indulgence in future cases.
This judgment was pronounced in the year 1810, during the conflict between the
French, Berlin, and Milan Decrees on the one hand, and the retaliatory British Orders
in Council on the other. Whatever may be thought of the particular decision, the
general rule with its modifications is laid down five years afterwards, in the case of
the Actceon, by the same learned Judge in the terms which we have stated.
If, however, these cases be held to establish the principle that there may be
questions of so much nicety in the construction of public documents, or the deter-
mination of unsettled points of [183] law, as to exonerate captors from what would
ordinarily be the consequence of their mistake, they will not much assist the argu-
ment of the respondents here, where no questions of law of any kind appear to have
existed.
The other authorities mainly relied on by the respondents do not relate to disputes
between belligerents and neutrals. They are either cases in which the rights of
belligerents only were involved, as where captures had been made by one belligerent
from another in ignorance that peace had been restored, or where no belligerent
rights at all were involved, as in the captures of ships engaged in the slave trade.
The rules laid down in these cases may have an indirect, but only an indirect,
application to questions between belligerents and neutrals.
The case of The John (2 Dods. 336) was of the former class.
There, a capture of an American vessel had been made by a British cruizer in
ignorance that war between Great Britain and America had ceased, and the prize
having been lost by unavoidable accident, the captor was called upon for restitution.
The case was one which, as the learned Judge intimates, might be provided for
by the Treaty of Peace between the two nations, and on which, as between them,
there might or might not be a claim against the British Government according to its
terms, and according as the British Government had or had not taken due means for
giving notice of the peace to its officer, and he lays it down that the officer, being
under invincible ignorance, and being in possession bonh fide, was not responsible for
the loss which had occurred.
In another case of the same kind, The Mentor (1 Rob. 183), Lord Stowell
seems to have thought that when an act of mischief was done by the King's officers,
though through ignorance, it would not necessarily follow that they would be protected
from civil responsibility, but that the party injured might resort to a Court of Prize,
and that the officer must look to his own Government for reimbursement. Whether
all the doctrines laid down in these two cases are quite consistent with each other
THE OSTSEE
377
2 SP. ECC. 85 AD. 182.](ViewImageLocal?handle=hein.slavery/ssactsengr0373&div=1&collection=&method=preview&ext=.png&size=3)