(repression in case of abuse excepted) the exchange of fresh fish, provisions, utensils and tackling, which is carried on habi tually between the peasants of the Russian coasts of the province of Archangel and the fishermen of the coasts of Norwegian Finmark." Such has been the practice of some of the principal Christian nations in protecting the coast-fisheries of enemies, but as yet this usage cannot be called a part of international law.*

$171.

Having seen what is the actual state of international law in regard to neutral trade, we may now inquire Justice whether any definite rule of justice applicable to neutral trade conrules respecting

such trade can be laid down.

sidered.

of

the

Admitting for the present that capture of private property on the sea is justifiable, we ask which of the two principles is comformable to justice, that which makes capture depend on the nationality of the conveyance, or that which makes it depend on the nationality of the property, whether ship or goods? Here we find

1. That the conveyance or vessel has been claimed to be territory, from which it would follow that, by interfering with neutral vessels, the sovereignty of neutral nations was invaded. But the claim is false, as has already been shown (§ 54), and seems to have been devised just to cover this particular case, just to screen neutral ships. It is not a claim admitted in the law of nations: ships are liable to search on the ocean, and are under the jurisdiction of the nation in whose ports they lie, to neither of which liabilities territory is exposed. How can the sea itself be the territory of no one, and a vehicle moving over it have the properties of terra firma? A deserted ship is not claimed to be territory. A ship with a crew on board is under the protection and jurisdiction of its country, where no other jurisdiction interferes; that is, may have certain properties of territory, but not all properties. On the other hand, if ships were territory, it is clear that all the operations of war which

* Comp. Ortolan, II. 44.

affect neutral vessels must be given up, blockade and the prevention of contraband trade, as much as any other.

2. It seems to be in accordance with justice, that the nationality of the property should determine the rules of capture. The only ground for taking certain things away from private persons is, that they belong to the enemy, or that they aid the enemy's operations in war. If they are taken because they belong to the enemy, vessels and goods ought to share the same fate: they are equally private property, and differ in no essential respect. If they are exempt from capture because they belong to neutrals, ships, and goods on board any ship ought to be exempt. The rule thus is just, clear, and logical.

3. The neutral has certainly a right to take his friend's goods on board his ship, and an equal right to put his own on board his friend's ship; nor will the fact that this friend has an enemy alter the case. Here the war-right of this enemy may subject him to great inconvenience, but neither his property nor his wages, in the shape of freight, ought to be taken from him. He is not guilty: why should he suffer other than those incidental evils which war brings with it, and a part of which are inevitable?

4. The establishment of the rule that free ships make goods free, is a gain for humanity and a waiver of justice. Hence we hail it as inaugurating an era more favorable to peace. All this on the admission that private property may rightfully be taken on the ocean: if it cannot be, or it is expedient that it should not be, the same rule is a movement in the right direction.*

Mr. Reddie (in his Researches in maritime international law, I. p. 468, cited by Ortolan, for I have not access to the work), remarks that it is doubtful whether the neutral gains anything by the rule, "free ships, free goods." For the carrying trade of hostile property must come to an end, as soon as peace is made, and the neutral's capital must then be turned into another channel. But if the belligerent's property be liable to seizure, goods as well as ship will belong to the neutral, and his capital thus invested will stimulate all branches of home industry, and probably be longer able to retain the channel which was opened to it by the war. There is something in this, but most wars are too short to keep the powers at war from returning to their old usages of trade at the peace. Besides, the annoyance of the neutral is a very great evil, and his loss may be great.

$172.

Former practice

tral trade.

In the course of the centuries during which international law has been growing up, rules have been fluctuating as it respects the liabilities of neutral trade, in regard to neuand conventional law has often run counter to prevailing rules. We propose here to give some brief historical illustrations of the former law and practice.

First, the leading results of a historical examination seem to be something like the following:

1. That of old in medieval Europe there probably was a feeling that neutral trade might be made unlawful by either belligerent at any time, and that the permission of such trade was looked upon as a concession. This explains the custom of confiscating the neutral ship with hostile goods on board, which was more or less prevalent.

2. That from the time when commerce by sea began to be a great interest, neutrals could carry hostile goods on their ships with the liability of only such goods to capture, and generally without risk to the vessel, save of detention, search, and change of course; and could put their own goods on hostile ships without danger of confiscation.

3. That treaties and ordinances during the 17th and 18th centuries often modified what may be called the prevailing usage, and differed so much from one another, as to show that no principle ran through them. Many of the treaties gave large freedom to neutral carriers, and some ordinances, especially in France and Spain, established a very harsh rule towards them. In general, where by treaty free ships made goods free, this was coupled with the rule, that hostile ships made goods hostile, or the nationality of the vessel determined the character of the transaction.

4. That from the last quarter of the 18th century neutral nations endeavored to force on the world the rule, "free ships, free goods," which was resisted, and prevented from entering into the law of nations by Great Britain, the leading maritime power.

5. That since the peace of 1815, in Europe, the importance of pacific relations and the power of capital have brought about a change of views in regard to international policy, until the rule above mentioned has nearly prevailed, and there are not wanting indications of a still larger liberty of maritime com

merce.

tions,

§ 173.

One of the earliest provisions of medieval Europe within Historical illustra. Our knowledge, is to be found in a treaty between Arles and Pisa, of the year 1221. It is there provided, that in case any goods of Genoese or other public enemies of Pisa are found in a ship with men of Arles, the men of Arles shall not make them their own, or defend them on their own account; and that during the continuance of the war between Pisa and Genoa, it may be lawful for the Pisans to treat men of Arles, if found on Genoese vessels, and their goods, as if Genoese, and to retain such goods when taken without restoring them, or causing them to be restored.*

Consolato del mare.

This, however, may have been a temporary and exceptional convention between the two cities. But a little later, at the end of the 13th or beginning of the 14th century, we meet with a code of wide influence, the Consolato del mare (comp. App. I.) which is remarkable, as being the only ancient sea-code that speaks of neutral rights in war. In chapter 231 of this code (Pardessus, II. 303–307), it is provided, that if a ship that is captured belongs to friends, and the merchandise on board to enemies, the commander of the cruiser may force the master of the captured vessel to bring him the hostile goods, and even to keep them in his own vessel, until

* Pardessus, Collection des lois mar. II. 303, refers to this treaty, which is to be found in Muratori's Antiq. Ital. IV. Col. 398, as illustrating the usage that the merchandise of a friend, although put on board an enemy's vessel, ought to be respected. But it shows just the contrary. The text of the latter part is "si forte aliquis Arelatensis cum Januensi, donec guerra inter Pisanos et Januenses fuerit, a Pisanis inventus fuerit, in eorum navibus, eundo vel redeundo, liceat Pisanis. Arelatensibus [that is, Arelatenses] et res eorum tamquam Januensium offendere et capere, et capta retinere, et non reddere nec reddi facere."

it is brought into a place of safety; but it is to be understood that the captured ship be carried in tow to a place where there shall be no fear of enemies, the commander of the cruiser paying, however, all the freight due for carrying the cargo to the place of unloading, etc.

Another provision of the same chapter is to the effect that, if the ship taken be hostile with a cargo belonging to friends on board, the merchants in the ship, and to whom the cargo in whole or in part pertains, ought to arrange with the captain of the captor to ransom the prize, and that he ought to offer it to them at a reasonable price. But if the merchants will not make a bargain, he is to have the right to send it into the port where his vessel was equipped, (?) and the merchants are obliged to pay the freight,-just as if he conveyed the goods to the port of destination, and nothing more than that freight. The code then goes on to speak of injuries suffered by the neutral merchants from the arrogance or violence of the captor, in which case, besides being relieved from paying freight, they shall receive compensation.*

According to Mr. Manning, all the treaties before the 17th century coincide with the Consolato del mare, in regard to the liability to capture of enemies' goods on board neutral vessels. In 1417, an engagement between Henry V. of England and the Duke of Burgundy (Jean-sans-peur), contained the stipulation that goods of Flemings, who were the duke's subjects, on board ships of Genoa, then at war with England, should be forfeited, if captured, as lawful prize. "This is the only instance I have met with," says Mr. Manning, "in which the claim, that neutral goods found in an enemy's ship are liable to capture as lawful prize, has ever been asserted or even been specified by this country, unless in return for the stipulation that enemies' goods are free in a neutral ship.”

* Mr. Manning cites this as chap. 273, others as chap 276.-In the remainder of these historical illustrations, and in those pertaining to contraband, blockade, and search, I have been greatly assisted by Mr. Manning's work.