individuals, form any part of the territory of that power Chap. III. to whose subjects it belongs. The jurisdiction which that $ 442. nations enemy's goods in neutral vessels to capture. Whatever may be the true original abstract principle Usage of of natural law on this subject, it is undeniable that the subjecting constant usage and practice of belligerent nations, from the earliest times, have subjected enemy's goods in neutral vessels to capture and condemnation as prize of war. This constant and universal usage has only been interrupted by treaty stipulations, forming a temporary conventional law between the parties to such stipulations (d). $ 443. vessels laden goods subject nances of The regulations and practice of certain maritime Neutral nations at different periods, have not only considered with enemy's the goods of an enemy, laden in the ships of a friend, to confiscation liable to capture, but have doomed to confiscation the by the ordineutral vessel on board of which these goods were laden. some States. This practice has been sought to be justified, upon a supposed analogy with that provision of the Roman law, which involved the vehicle of prohibited commodities in the confiscation pronounced against the prohibited goods themselves (e). Thus, by the marine ordinance of Louis XIV., of 1681, all vessels laden with enemy's goods are declared lawful prize of war. The contrary rule had been adopted by the preceding prize ordinances of France, and was (c) Rutherforth's Inst. vol. ii. b. ii. ch. 9, § 19. Azuni, Diritto Maritimo, Pt. II. ch. 3, art. 2. Letter of American Envoys at Paris to M. de Talleyrand, January, 1798. Waite's American State Papers, vol. iv. p. 34. (d) Consolato del Mare, cap. 273. Wheaton's Hist. Law of Nations, pp. 65, 115-119, 200-206. Albericus Gentilis, Hisp. Advoc. lib. i. cap. 27. Gro tius, de Jur. Bel. ac Pac. lib. iii. cap. 6, (e) Barbeyrac, Note to Grotius, lib. Part IV. again revived by the règlement of 1744, by which it was declared, that "in case there should be found on board of neutral vessels, of whatever nation, goods or effects belonging to his Majesty's enemies, the goods or effects shall be good prize, and the vessel shall be restored." Valin, in his commentary upon the ordinance, admits that the more rigid rule, which continued to prevail in the French prize tribunals from 1681 to 1744, was peculiar to the jurisprudence of France and Spain; but that the usage of other nations was only to confiscate the goods of the enemy (ƒ). $444. Goods of a friend on board the ships of an enemy, liable nations. Although by the general usage of nations, independently of treaty stipulations, the goods of an enemy, found on board the ships of a friend, are liable to capture to confiscation and condemnation, yet the converse rule, which subjects by the prize codes of some to confiscation the goods of a friend, on board the vessels of an enemy, is manifestly contrary to reason and justice. It may, indeed, afford, as Grotius has stated, a presumption that the goods are enemy's property; but it is such a presumption as will readily yield to contrary proof, and not of that class of presumptions which the civilians call presumptiones juris et de jure, and which are conclusive upon the party. But however unreasonable and unjust this maxim may be, it has been incorporated into the prize codes of certain nations, and enforced by them at different periods. Thus, by the French ordinances of 1538, 1543, and 1584, the goods of a friend, laden on board the ships of an enemy, are declared good and lawful prize. The contrary was provided by the subsequent declaration of 1650; but by the marine ordinance of Louis XIV., of 1681, the former rule was again established. Valin and Pothier are able to find no better argument in support of this rule, than that those who lade their goods on board an enemy's vessels thereby favour the commerce of the enemy, and by this act are considered in law as (ƒ) Valin, Comm. liv. iii. tit. 9. Des Prises, art. 7. Wheaton's Hist. Law of Nations, pp. 111-114. submitting themselves to abide the fate of the vessel; Chap. III. and Valin asks, "How can it be that the goods of friends and allies, found in an enemy's ship, should not be liable to confiscation, whilst even those of subjects are liable to it?" To which Pothier himself furnishes the proper answer that, in respect to goods, the property of the king's subjects, in lading them on board an enemy's vessels they contravene the law which interdicts to them. all commercial intercourse with the enemy, and deserve to lose their goods for this violation of the law (g). The fallacy of the argument by which this rule is attempted to be supported, consists in assuming, what requires to be proved, that, by the act of lading his goods on board an enemy's vessel, the neutral submits himself to abide the fate of the vessel; for it cannot be pretended that the goods are subjected to capture and confiscation ex re, since their character of neutral property exempts them from this liability. Nor can it be shown that they are thus liable ex delicto, unless it be first proved that the act of lading them on board is an offence against the law of nations. It is therefore with reason that Bynkershoek concludes that this rule, where merely established by the prize ordinances of a belligerent power, cannot be defended on sound principles. Where, indeed, it is made by special compact the equivalent for the converse maxim, that free ships make free goods, this relaxation of belligerent pretensions may be fairly coupled with a correspondent concession by the neutral, that enemy ships should make enemy goods. These two maxims have been, in fact, commonly thus coupled in the various treaties on the subject, with a view to simplify the judicial inquiries into the proprietary interest of the ship and cargo, by resolving them into the mere question of the national character of the ship. The two maxims are not, however, inseparable. The primitive law, independently of international compact, free ships free (9) Valin, Comm. liv. iii. tit. 9. Des Prises, art. 7. Pothier, Traité de Propriété, No. 96. § 445. The two maxims, of Part IV. rests on the simple principle, that war gives a right to goods and enemy ships, enemy goods, not neces sarily connected. capture the goods of an enemy, but gives no right to capture the goods of a friend. The right to capture an enemy's property has no limit but of the place where the goods are found, which, if neutral, will protect them from capture. We have already seen that a neutral vessel on the high seas is not such a place. The exemption of neutral property from capture has no other exceptions than those arising from the carrying of contraband, breach of blockade, and other analogous cases, where the conduct of the neutral gives to the belligerent a right to treat his property as enemy's property. The neutral flag constitutes no protection to an enemy's property, and the belligerent flag communicates no hostile character to neutral property. States have changed this simple and natural principle of the law of nations, by mutual compact, in whole or in part, according as they believed it to be for their interest; but the one maxim, that free ships make free goods, does not necessarily imply the converse proposition, that enemy ships make enemy goods. The stipulation, that neutral bottoms shall make neutral goods, is a concession made by the belligerent to the neutral, and gives to the neutral flag a capacity not given to it by the primitive law of nations. On the other hand, the stipulation subjecting neutral property, found in the vessel of an enemy, to confiscation as prize of war, is a concession made by the neutral to the belligerent, and takes from the neutral a privilege he possessed under the pre-existing law of nations; but neither reason nor usage renders the two concessions so indissoluble, that the one cannot exist without the other. It was upon these grounds that the Supreme Court of the United States determined that the Treaty of 1795, between them and Spain, which stipulated that free ships should make free goods, did not necessarily imply the converse proposition, that enemy ships should make enemy goods, the treaty being silent as to the latter; and, that, consequently, the goods of a Spanish subject, found on board the vessel of an enemy of the United Chap. III. States, were not liable to confiscation as prize of war. And although it was alleged, that the prize law of Spain would subject the property of American citizens to condemnation, when found on board the vessels of her enemy, the court refused to condemn Spanish property found on board a vessel of their enemy, upon the principle of reciprocity; because the American government had not manifested its will to retaliate upon Spain; and until this will was manifested by some legislative act, the court was bound by the general law of nations constituting a part of the law of the land (h). law as to free § 446. The conventional law, in respect to the rule now in Conventional question, has fluctuated at different periods, according to ships free the fluctuating policy and interests of the different goods. maritime States of Europe. It has been much more flexible than the consuetudinary law; but there is a great preponderance of modern treaties in favour of the maxim, free ships free goods, sometimes, but not always, connected with the correlative maxim, enemy ships enemy goods; so that it may be said that, for two centuries past, there has been a constant tendency to establish, by compact, the principle, that the neutrality of the ship should exempt the cargo, even if enemy's property, from capture and confiscation as prize of war. The capitulation granted by the Ottoman Porte to Henry IV. of France, in 1604, has commonly been supposed to form the earliest example of a relaxation of the primitive rule of the maritime law of nations, as recognized by the Consolato del Mare, by which the goods of an enemy, found on board the ships of a friend, were liable to capture and confiscation as prize of war. But a more careful examination of this instrument will show, that it was not a reciprocal compact between France and Turkey, intended to establish the more liberal maxim of free ships free goods; but was a gratuitous concession, on the part of the Sultan, of a special privilege, by which the goods of (h) The Nereide, 9 Cranch, 388. |