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itself to a principle, which though arbitrary is not inequitable, and which serves the interest of neutrals, it has blinded the world to its true nature; and as part of the formula, 'free ships, free goods; enemy ships, enemy goods,' it has been adopted into the policy of nations which have shown themselves intolerant of far less questionable usages.

65. The earliest custom in the matter agrees Early with the juster and less artificial view. The rules of usage. the Consolato del Mare, which enabled a belligerent to seize the property of his enemy wherever he found it, prohibited him at the same time from robbing his friend. While therefore an enemy's ship was subjected to confiscation, its neutral cargo remained free, and it was even provided that the owners of the cargo should be permitted to buy the vessel from the captain at a reasonable price, in order to avoid the inconvenience and loss of being carried into his ports.1 An early usage to a like effect may probably have existed in the northern seas, for the Hollanders, during war with Lübeck and other Hanse Towns in 1438, ordered that goods belonging to neutrals found in an enemy's ship should not be made prize; and it is said that until the middle of the sixteenth century France observed a like rule.2 But in 1584 the first of a series of edicts appeared in the latter country which established a national custom of peculiar harshness. It was ordered that if the ships of our subjects make a prize in time of war of enemy's ships, in which are persons, merchandise, or other goods of our said subjects or allies, the whole shall be declared good prize as if the whole belonged to our said enemies.'"

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England, on the other hand, generally maintained Practices

1 See a translation of the

2 Hübner, 1re Parl. chap. i,

text of the Consolato in Ortolan, § 8; Ortolan, ii. 100.

ii. 98, or Heffter, § 163.

3 Ortolan, ii. 101,

in the

seven

teenth century.

the doctrine of the Consolato del Mare; but in the beginning of the seventeenth century its views do not appear to have been thoroughly fixed, for in 1626 a French negotiator, the Maréchal de Bassompierre, found the report of commissioners to whom certain points of maritime law had been referred by the English Government, to be in this point fully in accordance with the usage of his own country.1 France again perhaps recurred for a time to the general practice by the Royal Declaration of 1650, which granted the freedom of neutral goods in enemy's ships; but she concluded a series of treaties from 1659 downwards, in which her older custom was embodied, and as she formally re-enacted the confiscation of neutral goods by the Ordonnance of 1681, it may be doubted whether the Declaration of 1650 was ever acted upon, and whether therefore it forms a real exception to the settled policy of the country.2

Whatever the practice of other countries may have been, their external policy was determined by the degree to which they were anxious to acquire or retain carrying trade in war time. It was impossible to obtain the freedom of belligerent goods committed to their care unless a corresponding advantage was offered to belligerents; hence the Dutch, who made it a cardinal object to secure the immunity of their flag, were obliged to buy the privilege by giving up

1 Ortolan, ii. 114.

2 Valin, Ord. de la Marine, ii. 254. M. Ortolan (ii. 104) suggests that the Ordonnance of 1681 was intended only to apply to allies in a common war, and not to neutrals; and its language is not perhaps absolutely inconsistent with his construction, it being only specified that les marchandises de nos sujets et alliés qui se trouveront

dans un navire ennemi seront de bonne prise.' But as the law was always administered on the assumption that neutrals were affected by its provisions, M. Ortolan's interpretation is no doubt the offspring of a patriotic wish to lessen so far as possible the contrast which exists between the historic doctrines of his country and those which she has adopted in recent times.

their own merchandise when carried in a belligerent ship; and in all treaties which they concluded the fate of the cargo was determined by that of the vessel.1 They were no doubt the more ready to make the concession that neutrals seldom require to make use of belligerent vessels to any large extent; and that they consequently gain a valuable privilege at a small price.

In the eighteenth century the history of the two In the eighteenth doctrines continued to follow the line sketched in the century. previous period. The private custom of England preserved the ancient rule under which neutral goods are free. France, on the other hand, had retained and reiterated in her internal legislation the severities in which she stood alone, until Spain became her imitator under the Bourbon kings. In 1704, 1744, and 1778 the principle that goods become enemy under an enemy's flag was freshly asserted; and Spain, by Ordinances in 1702, 1718, and 1779, modelled her laws on the French Regulations in force at the respective dates.2 Down to the time of the First Armed Neutrality a large number of treaties, for the same reason as in the preceding century, generally stipulated for the condemnation of neutral merchantmen in belligerent vessels; but they seem to have had little effect in changing the bent of opinion in the direction of the practice for which they stipulated. Writers so different as Vattel and Hübner could on this point find themselves in accord, and England was of one

1 Phillimore, iii. § 180; Manning, 251. See the Dutch treaties enumerated, p. 138.

2 Ortolan, ii. 108.

3 See the treaties mentioned, p. 140; except the treaty between England and Spain in 1713, which contains no stipulation in the matter. Sir R.

Phillimore (iii. § 181), adopting
a computation made by Mr.
Ward, says that thirty-four

treaties from 1713 to 1780 make
no mention of the principles, Free
ships, free goods; Enemy ships,
enemy goods.

4

Les effets des peuples neutres, trouvés sur un vaisseau

Present

state of

tion.

mind with the members of the Armed Neutrality. It was impossible for neutrals to ask more than England already spontaneously gave to them, and accordingly the programme of the Armed Neutralities contained no articles on the subject. But in the present century the confiscation of neutral goods reappears in the treaties made by France and the United States, set off as usual against the freedom of enemy's goods in neutral vessels; though at the same time the United States have always distinctly acknowledged that under international common law the goods of neutrals in enemy's vessels are free.1

Thus while England and the United States were the ques- committed, apart from treaties, to the view that the goods of neutrals in course of transport by a belligerent are free, the minor maritime states were led by their interests to adopt the same doctrine; and France stood alone with Spain in the assertion that their confiscation was permitted by accepted usage. When therefore France, in compliance with the request of England, abandoned her national practice in 1854, Spain remained the only country which adhered to it in principle; and the Declaration of Paris has probably secured its abandonment beyond recall.

ennemi, doivent être rendus au
propriétaire, sur qui on n'a aucun
droit de les confisquer, mais sans
indemnité pour retard, dépérisse-
ment, &c. La perte que les
propriétaires neutres souffrent en
cette occasion est un accident
auquel ils se sont exposés en
chargeant sur un vaisseau ennemi;
et celui qui prend ce vaisseau, en
usant du droit de la guerre, n'est
point responsable des accidents
qui peuvent en résulter, non plus
que si son canon tue sur un bord
ennemi un passager neutre, qui
s'y rencontre pour son malheur.'
Vattel, liv. iii. chap. vii. § 116.

1 See the treaties enume

rated, p. 142. The Atalanta, iii Wheaton, 415. 'It is true that sundry nations have in many instances introduced by their special treaties another principle between them, that enemy bottoms shall make enemy goods, and friendly bottoms, friendly goods; but this is altogether the effect of particular treaties, controlling in special cases the general principle of the law of nations, and therefore taking effect between such nations only as have so agreed to control it.' Mr. Pickering to Mr. Pinckney, American State Papers, i. 559.

CHAPTER VII.

VISIT AND CAPTURE.

visit and

§ 66. VISIT and capture are the means by which Object of a belligerent gives effect to his rights over neutral capture. property at sea which has become noxious to him in any of the ways indicated in the preceding chapters. By visit he examines whether any breach of the law has taken place, and by capture he enables himself, if any violation has in fact occurred, to inflict the appropriate penalty.

visit.

Who is

liable to

visit.

§ 67. As the rights possessed by the belligerent, Who can of controlling intercourse between neutrals and his enemy is an incident of war, and as war can only be waged by, or under the authority of, a state, the rights of visit and capture must be exercised by vessels provided with a commission from their sovereign. On the other hand, as the pretension to search vessels of war, which formed a grave matter of contest in the early part of the century, can no longer be seriously urged, private vessels of the neutral state are the only subjects of the belligerent privilege. It is incumbent on all such vessels to be provided with certain documents for the proof of their neutral character, and of the innocency of the adventure in which they are engaged, and it is agreed that they are obliged as a general rule to produce these proofs on the summons of a duly authorised person.

§ 68. But it is a controverted point whether

Whether

convoyed

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