PROBLEMS OF INTERNATIONAL LAW 525 



Her papers were preserved, her officers and crew placed in safety 

 and allowed to attend the condemnation proceedings at Vladivos- 

 tock. The court there subsequently held such proceedings a basis 

 for condemnation. 



The criticism seems to rest on the doctrine often asserted that 

 although a belligerent vessel taken as a prize may be destroyed if 

 it cannot be brought in, yet a neutral vessel so taken must not be 

 destroyed, but if she cannot be brought in, must be allowed to go 

 free, even though carrying contraband. 



The contraband articles cannot be taken from the neutral ship 

 for at least two reasons: First, commonly, as in the case of the 

 Knight Commander's cargo of railroad supplies, it is physically 

 impossible for the warships to accommodate them. Secondly, the 

 claim always is that the ship and her papers and necessary witnesses 

 must be brought into port as a condition for condemning the cargo. 

 Thus, in the Trent affair, where it was claimed that the carrying of 

 Messrs. Mason and Slidell was in the nature of carrying contraband, 

 and that therefore their seizure and removal was warranted, it was 

 successfully answered that until condemned by a proper prize court, 

 a captor has no right to do anything except bring the ship before 

 the court. 1 



This doctrine, that a neutral vessel can never be destroyed before 

 adjudication, seems to rest mainly on the case of the Felicity, 2 where 

 Sir W. Scott passed on the subject of an American merchant ship 

 and cargo destroyed by the English cruiser Endymion during the 

 war of 1812. The vessel was sailing under British license but mis- 

 took her captor for an American warship. She therefore concealed 

 this license. The weather was so boisterous and the vessel so in- 

 jured that she could not be brought to port, nor could the captor 

 spare a prize crew. She was therefore burned. The court holds, as 

 her license was concealed, she must be treated simply as a belligerent, 

 and that the destruction was legal. It is said, arguendo merely, that 

 if she had shown her license she would have been entitled to be treated 

 as a neutral, and Sir William says: 



" Where it is neutral, the act of destruction cannot be justified 

 to the neutral owner by the gravest importance of such an act to 

 the public service of the captor's own state; to the neutral it can 

 only be justified, under any such circumstances, by a full restitution 

 in value. These are rules so clear in principle and established in 

 practice that they require neither reason nor precedent to illustrate 

 or support them." 



This remark of an eminent judge seems largely the parent of the 

 rule. It is submitted, with deference, that the rule apparently 



1 Wheaton's International Law (ed. 1904), sec. 109 b. 



2 Dodson's Admiralty, 381. 



