that there was a permanent State of War upon the waters of the Mediterranean between the Christian and the Saracen corsairs, the conduct of which it had been found expedient by both parties to place under some regulations. Thus Fanucci 10 cites an example of a date as early as A. D. 1164, from which it would appear that the Right of Visitation and Search was recognised at that time both by Christian and by Mahommedan Powers, as a belligerent Right in regard to Neutrals; and we find in certain chapters of the Consolato del Mare, and in various other collections of Sea Laws of the fourteenth century, express regulations as to the incidents of battle with Saracen vessels. of ship $77 Looking then to the Consolato del Mare Distinction as the tradition of the early jurisprudence of the from cargo. Middle Ages, in regard to belligerent and neutral rights on the High Seas, we find that in the fourteenth century, in order to reconcile the free action of a Belligerent against the property of an enemy with the respect due to the property of a Neutral Subject, a rule had become established under which neutral property, although laden on board of an enemy's ship, was not subject to confiscation upon the capture of the ship; and reciprocally a neutral ship laden with enemy's goods was to be restored to its owner, upon the delivery of its cargo to the belligerent captor. As the primary object of war is to work Corrective Justice by exacting compensation for damage which has been inflicted, the mode by which a belligerent Power brings about this result is by seizing the goods not only of the actual wrong-doer, if they can be met with at sea, but also the goods of other subjects of the Sovereign Prince, who, as such, ought to control the conduct of the actual wrong-doer and constrain him to make reparation; and thereupon either detaining them as a security until justice is done, or confiscating them as an equivalent for the loss which has been sustained. The action of a belligerent, accordingly, in seizing ships" or their cargoes on the High Seas, should in reason and justice be confined to the property of enemies. It will therefore not excite surprise to find that the Common Law of the Sea in matters of prize in the fourteenth century, as it did not proceed upon any principles of Empire, but was framed upon considerations of Corrective Justice, was so far consistent with Natural Right (suum cuique) that neutral property was sacred upon the common highway of Nations, whilst enemy's property, wheresoever found, was good prizeThe recognition of this principle may be traced back to the thirteenth century, as it is found to be the basis of a compact between the city of Pisa and the city of Arles, A. D. 12212. In the course of the next century, to which the compilation of the Consolato del Mare has been referred, we find the same principle embodied in treaties which Edward III of England concluded, on the one hand with the maritime cities of Biscaye and Castile A. D. 1351, and on the other hand with the towns of Portugal 13 A.D. 1353; and thus the Customs of 11 Statute of Marseilles, L. II. c. 30. Cf. Ducange, Glossarium, vox Laudum, which signifies Jus recipiendi quod suum est, atque ob id manum injiciendi in bona vel corpus debitoris. 12 Muratori Antiquitates Italice Medii Evi, L. IV. col. 398. 13 Rymer, Fœdera, Tom. III. Part I. p. 71 and 88. the Mediterranean Sea came to extend themselves amongst the merchants and mariners of the Western and Northern Seas. In the following century the Duchy of Burgundy A. D. 14064, the City of Genoa A.D. 146215, the Duchy of Brittany A. D. 14681, and the Duchy of Austria A.D. 1495, entered formally into the same system of prize law by treaties concluded with England; and the general practice of European Nations in the fifteenth century may be said to have been uniform in this matter, and so to have continued until the middle of the sixteenth century, when Francis I of France, avowedly with the object of checking neutral frauds, directed the Admiralty Règlement of France, by the Règlement of A. D. 1543, to condemn the goods of a friend found on board the ship of an enemy, and the ship of a friend, if it should be found laden with enemy's goods. of 1543. Edict of 1584. § 78. The practice which France has pursued since the Règlement of 1543 has been subject to fluctuations. An Edict of Henry III (A. D. 1584) laid down the same rule for the French Prize Courts which had been promulgated by Francis I, proceeding upon the principle of hostile infection, expressed by the maxim of "Robe d'ennemi confisque celle d'ami. This maxim had been justified by the celebrated French jurist Mornac, upon a suggested analogy with a provision of the Roman Civil Law18, according to which a vehicle carrying prohibited goods was liable to confiscation with the goods French themselves. In 1650 the doctrine of hostile infec- hostile intion was so far relaxed, that whilst enemy's property 14 Rymer, Fœdera, Tom. IV. Part I. p. 3. 15 Ibid. V. Part II. p. 92. 16 Ibid. V. Part II. p. 161. 17 Ibid. V. Part IV. P. 85. 18 Dominus navis si illicite aliquid in navi vel ipse, vel vectores imposuerint, navis quoque fisco vindicatur. Dig. L. XXXIX. Tit. IV. c. 2. § 2. doctrine of fection. was to be confiscated, the goods of friends were to Ordon- be restored to them; but the famous Ordonnance Marine of de la Marine of Louis XIV. A. D. 168119, revived nance de la 1681. Spanish Ordenanza 1718. all the severity of the earlier Regulations of 1543 and 1584. Spain, under the sceptre of the House of Bourbon, followed in the wake of France, and by Article IX of her Ordenanza di Corso A. D. di Corso of 1718, adopted the provisions of the Ordinance of Louis XIV 20 It was not until A. D. 1744 that some relaxation in the severity of the Ordinance of Louis XIV was introduced by an Order in Council 21, directing that whilst enemy's goods should be confiscable on board of a neutral vessel, the vessel itself should be restored to its owners; but this order, says Valin22, was only made from a reference to particular treaties, and in order to give effect to treaty-engagements with particular Powers. The doctrine of hostile infection was at last definitively set aside by the Règlement of 26 July 17782, under which, whilst neutral ships carrying contraband of war destined for the enemy were not to be confiscated unless three fourths of their cargo were contraband, privateers were forbidden to seize and detain neutral vessels, unless they were destined to a blockaded or besieged place 24. The Conseil des Prises in France has interpreted this Règlement to imply the principle of Free Ships, Free Goods; and although its operation was suspended for a French Règlement of 1778. 19 Lebeau, Code des Prises, Tom. I. p. 80. 20 D'Abreu, Prises Maritimes, 21 Lebeau, Tom. I. p. 471. 23 Lebeau, Code des Prises, Tom. III. p. 19. 24 By the Ordinance of 1780 Spain declared that enemy's property should be taken out of neutral ships, and the ships be allowed to go free, whilst freight was to be paid on the goods taken out of them. French short time by the Law of 29 Nivose of the year VI of the Republic 25, whereby a vessel was held to have a friendly or hostile character according as the cargo on board of it belonged to a friend or an enemy, it was once more revived by the Decree of 22 Frimaire, of the year VIII of the Republic, and it may be considered to have been the Law of the Law of the French Prize Courts down to the breaking out of the Prize war against Russia in 1854. An eminent English Courts. Judge (Sir William Grant) in delivering the judgment of the Lords of Appeal in Prize Causes in 1801, upon an incidental question arising in the case of a vessel warranted Swedish property (Sweden being then neutral in the war between Great Britain and France), which had been confiscated by a French tribunal in the Isle of France, as enemy's property, under the French Ordinance of 1778, observed, in reference to the various French Ordinances in matters of prize, that when Louis XIV published his famous Ordinance of 1681, "nobody thought that he was undertaking to legislate for Europe, merely because he collected together and reduced into the shape of an ordinance the principles of marine law, as then understood and received in France. I say, as understood in France; for although the Law of Nations ought to be the same in every country, yet as the tribunals which administer the Law are wholly independent of each other, it is impossible that some differences shall not take place in the manner of interpreting and administering it in different countries, which acknowledge its authority. Whatever may have been attempted, it was not at the period now 25 Lebeau, Code des Prises, Tom. III. p. 475- L'état des navires, en ce qui concerne leur charactère de neutre ou d'en nemi, sera déterminé par leur 26 Ibid. Tom. III. p. 615. |