CHAPTER VIII. THE LAW OF NATIONS AS TO THE RIGHT OF CAPTURE. So much for the principle. Let us now see what has been laid down as the rule of international law by the great publicists. The oldest authority on the Laws of Maritime War is the Consolato del Mare, a code which was of recognized authority so early as the end of the eleventh century, and which was received and adopted from the Baltic to Constantinople. The rule there laid down is this: 66 "If an armed ship or cruiser meets with a merchant vessel "belonging to an enemy and carrying a cargo the property of an enemy, common sense will sufficiently point out what is to be done, it is therefore unnecessary to lay down any rules for "such a case." "If the captured vessel is neutral property and the cargo the "property of enemies, the captor may compel the merchant "vessel to carry the enemy's cargo to a place of safety, where "the prize may be secure from all danger of recapture; paying "to the vessel the whole freight which it would have earned at "her delivering port." 1 Grotius, that great and wise Dutchman, who has been called the Father of International Law, and who certainly was the first who reduced it to the form of a Science, wrote in the beginning of the seventeenth century. He adopted the Consolato del Mare, and transcribed the passage relating to this point;2 and 1 2 Consolato del Mare, cap. 273. Robinson's translation. 3 although he does not argue the point out (for no pretensions contrary to the law of the Consolato had in his time been raised), yet there can be no doubt how he would have decided upon it, for he leaves it an open point whether a belligerent may not even prohibit a neutral from carrying his own property to the belligerent, which is to go much further than the prohibition to carry the property of the belligerent. The English Albericus Gentilis, the Dutch Voetius,' the English Zouch, the Swedish Loccenius, all equally accept and declare the principle that enemy's property is liable to capture, wherever found on the high seas. Puffendorff* refers to Grotius on the question, and like him admits that it may be allowable for a belligerent to prohibit not merely neutral carrying but all neutral trade with the other belligerents. Bynkershoek, a Dutch publicist who wrote at the beginning of the eighteenth century, and Heineccius, a Prussian, his contemporary, were the first who found such a notion raised as that neutral ships could protect enemy's property, and they both contemptuously repudiate and denounce it." "Why do you doubt?" asks the former of the two, and "Nobody doubts," replies the latter. 5 Thus it appears that from the eleventh to the middle of the eighteenth century there was no doubt or question as to this matter. Neither was such a claim as that of neutrals to carry, and by their flag alone 6 Barbeyrac, Law of Nature and of Nations, L. VIII, c. 6. Navibus ob vect iram vetilarum mercium commiss. cap. 2. to protect from capture, enemy's property ever raised till 1752, when it was first advanced by the King of Prussia in a memorial to the Duke of Newcastle, whose answer drawn up by four publicists, Lord Mansfield, Sir G. Lee, Dr. Paul, and Sir Dudley Ryder, is held by Montesquieu as an "unanswerable reply," and by Vattel to have thoroughly established the position contended for. The King of Prussia accordingly at once abandoned his contention, and did not carry out the threat which had accompanied it. Vattel and Montesquieu, as we have seen, pronounced against him, and Vattel, facing the whole question, declares that "if we find an enemy's effects on board a neutral ship we seize them by the rights of war." 4 Against this array of great names there are to be set on the other side Hübner, a Dane, who had been employed by his own Government to endeavour to obtain an alteration in the law, and who wrote for that particular purpose, as an advocate would, and Schlegel, his disciple, both of whom have been utterly overthrown not less as reasoners than as authorities by Ward, by Lord Liverpool," by Lampredi, and later by Manning. But from this time when the novel claim was first raised, there begins a new set of 8 'The Duke of Newcastle's Letter to M. Michell, the King of Prussia's Secretary to the Embassy. London, 1753. 2 Lettre 45 à l'Abbé Guasco. 3 Droit des Gens, Book II, cap. VII, 84, p. 166, in Chitty's translation. 4 Droit des Gens, Book III, cap. VII, 115. 5 Treatise of the Relative Rights and Duties of Belligerents and Neutral Powers. Discourse on the conduct of Great Britain, 1759. 7 Commentaries on the Laws of Nations, pp. 200, 233, 235. 66 We must remember all along, that whenever the maxim of 5 6 authorities who now being first challenged to examine it, all asserted and justified the old rule. Moser, a Dane,' Lampredi and Azuni, Italians,3 Chancellor Kent, Wheaton, Phillimore, and Reddie,' in their writings, Sir William Scott (Lord Stowell) and the Admiralty courts by their decisions have exhausted the question; and on the other side we find only such men as De Martens and Klüber, De Rayneval and Ortolan (the last with much hesita"Free Ships Free Goods was admitted, it was always accom"panied with the reversal of the other provision of the Consolato, "that neutral property on board enemies' ships should be free; "and I am aware, that in some interpretations of very learned "men it is said, whenever this reversal is stipulated for, which it "frequently is, the other maxim follows along with it as a thing "of course. This they ground upon the reason which has "before been stated, that both principles take their rise in "convenience; and that, in order to avoid the confusion, delay "and chance of injustice which may arise in ascertaining the "different national characters of the owners of the cargo, it is "better to sweep away the whole at once under the national "character of the ship."-Page 145, A Treatise of the Relative Rights and Duties of Belligerent and Neutral Powers in Maritime Affairs. By Robert Ward, Esq., Barrister-at Law, in 1801. (Reprinted from the original edition by Lord Stanley of Alderley, 1875.) Moser, Versuch, B. XX, cap. ii,, pp. 33, 34. 2 Droit Maritime de l'Europe, cap. iii. 3 Du commerce des Neutres.-Lampredi's adhesion to and assertion of the right as in conformity with the law of nations is the more remarkable because he avows that his great desire is to see the principle of "free ships free goods" established. His treatise is very valuable as being a collection and summary of all the arguments used by preceding publicists: the same remarks apply to Azuni. 4 Kent's Commentaries, I, 126, 131. 3 Elements of International Law, 162, 183. • Commentaries on International Law, vol. ii, § 9i 1 Researches, historical and critical, in Maritime International Law, vol. i, p. 463. tion) who neither exhaust nor argue it, but merely lay down as an arbitrary rule one contrary to all reason, precedent, and authority. There is indeed one writer who in recent times (1868) has undertaken to argue that the "primitive law," or in other words the law of Nature and of Justice which is the law of nations, either does or should forbid the capture of enemy's property in neutral vessels. This writer is M. Hautefeuille, and it has been reserved to him to show that the principle of "free ships make free goods," for which he contends, is one which was both originally invented and has always been advocated with the express and only purpose of putting an end to the maritime power of Great Britain. His work is a series of indecent and frenzied attacks upon that country, and its avowed purpose is to bring about a new and permanent armed neutrality with the object, equally avowed, of diminishing her power by enforcing the principle for which he contends.' There could not possibly be a better proof that M. Hautefeuille is aware of the vital importance to a maritime country of this question, nor a better proof that those who advocate his views do, wittingly or not, advocate the extinction of maritime power. 1 "Ses forces mêmes," he says, speaking of England, "quelques "considérables qu'elles soient, viennent se briser contre les droits "des peuples neutres si ces peuples savent se réunir pour le "salut commun." And he admits also that the mere retention of the right to seize enemies' goods is sufficient to prevent their transport. "Le commerce," he says, "vit de sécurité, le com"merce de transport comme tous les autres ne peut exister sans "cette garantie. Du moment où la propriété ennemie n'est pas. en sûreté à bord des navires neutres, navires qui ne doivent pas même se défendre contre le belligérant, le commerce de transport est frappé de mort."-Des Droits et des Devoirs des Nations neutres. 66 66 G |