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LAW OF NATIONS
AFFECTING COMMERCE DURING WAR:
WITH A REVIEW
JURISDICTION, PRACTICE AND PROCEEDINGS
FRANCIS H. UPTON, LL. B.
JOHN S. VOORHIES. LAW BOOKSELLER AND PUBLISHER,
Bntered. according to Act of Congress, in the year 1861.
United States Court, , New York, June 3, ,1861. F. H. Upton, Esq.: «•
Dear Sir:—It seems certain th,'.. the unfortunate civil conflict in which our country is engaged, will call into exercise to no inconsiderable extent the prize jurisdiction of our Courts of Admiralty. If this be so, a work which shall include a summary of the Practice and Proceedings in Prize Courts, will be of great value to the profession and to suitors before the Prize Courts of the country. Knowing the interest which you have heretofore taken in the study of this subject, and your past experience in the practice in prize causes, we suggest to you, if you may control your time for such purpose, that you undertake the preparation of such a work as shall supply, in this respect, the urgent want of theprofession and of the community.
Sam. P. Betts,
Henry H. Elliott,
To The Honorable Samuel R. Betts, Judge Of The District Court Of The United States, And E. H. Owen And Henry H. Elliott, Esqs., Prize Commissioners.
The suggestion, formally communicated to me in your note of the 3d of June last, was informally made by one of you, in a conversation had directly after the organization of the Federal Court for the exercise of its prize jurisdiction.
Pursuant t< that suggestion, it was my original purpose to limit n\\ labors to the endeavor to supply what seemed to be an urgent necessity, namely: a review of the origin and character of the jurisdiction of Prize Courts, and of the Practice and Proceedings adopted by them, in the administration of the international law of maritime warfare.
In the progress of my labors to this end, I became persuaded that a preliminary review of the law of nations, so far as they relate to the interests of commerce in time of war, was essential to the just appreciation of the peculiar jurisdiction and practice of prize tribunals.
It is now nearly a half century since there has existed, in our country, any immediate practical necessity of a familiarity with the principles and rules of this law. It is, therefore, not surprising, that in the recent discussions, resulting from the present emergency, upon the interesting subjects of lawful belligerents and their rights, of the rights and obligations of neutrals, of the law of blockade, of contraband traffic, and of other kindred topics, vague and imperfect notions should be found to be prevalent.
In view of this, I hope that you may justify a departure from my first intention, although it has occasioned some delay in a compliance with your suggestion.
In the review of the important questions of international law, contained in the preliminary chapters of the work which 1 now present to you, no attempt at originality has been ventured, other than that involved in the arrangement and method of presenting the subjects— and as to that portion of the work which treats of the jurisdiction, practice and proceedings of prize courts—it is, and could be, little else tlian a methodized arrangement of the rich materials already furnished from the abundant stores of Lord Stowell and Mr. Justice Story.
Thus methodized and arranged, these subjects are now, for the first time, connected in one treatise. I sincerely trust that the result, while meeting your approval, may prove to be, not of mere temporary interest, to cease with the termination of the civil discord which has prompted it, but of substantial and permanent utility—as well to the statesmen and merchant as the lawyer.
F. H. Upton.
New York, July, 1861.
PREFACE TO THE SECOND EDITION.
It was fortunate for tlie wellbeing of the United States, when the standard of rebellion was raised to overthrow the government, that the direction and management of its naval affairs should haye been committed to the present distinguished head of that department.
TTnder the judicious guidance, incomparable energy, and rare admin istrative capacity, which he lias brought to the service, the world has witnessed with admiring wonder, the amazing change which a few brief months have wrought in the naval power of the nation.
From a condition of humiliating insignificance and inefficiency, in which he found it (induced mainly by the jealous and uniform hostility to its encouragement and increase, on the part of the slaveholding section of the Union, which, in the name of democracy, had hitherto controlled the affairs of the government), out of the great exigencies and boundless resources of the nation, it has suddenly started into life—a gigantic and invincible power—even as Minerva is said to have sprung, all armed, from the head of Jove.
Its achievements in the reduction of fortresses, hitherto deemed impregnable to the assault of naval armaments, have become memorable epochs in naval history.
Its agency in the enforcement of the government interdict of commercial intercourse with the insurgent population, over thousands of miles of coast upon the Atlantic Ocean and the Gulf of Mexico, has been not only of inestimable value to the nation, but wholly unprecedented in the annals of blockading service.
The curse of slavery, and its withering influences, being happily withdrawn from the control of the government—by God's blessing never to be restored—a complete revolution in the policy of the nation is as immediate as it was inevitable; and hereafter, the nation's navy will become and remain the great right arm of the nation's defence.
Henceforth, all subjects, in any manner connected with the management and interests of this great power, will assume an importance hitherto unacknowledged or unknown.
The numerous and important questions in the law of nations affecting the interests of neutral commerce, which have grown out of the civil war in the United iStates-"-the momentous issues discussed and