States of referred to supposed, that one State could make or alter the Law of Nations; but it was judged convenient to establish certain principles of decision, partly for the purpose of giving an uniform rule to the Courts, and partly for the purpose of apprising Neutrals what that rule was." The same learned Judge, in commenting upon the administration of the law of Prize by the French Courts, under the direction of these Ordinances, observes "that they have not taken them as positive laws binding upon Neutrals, but they refer to them as establishing legitimate presumptions, from which they are warranted to draw the conclusion, which it is necessary for them to arrive at, before they are entitled to pronounce a sentence of condemnation 27." $ 79. The Rule of the Consolato del Mare has been explicitly incorporated into the jurisprudence United of the United States, and declared by the Supreme America. Court to be a correct exposition of the Usage of Nations. The rule," says Chief-Justice Marshall, "that the goods of an enemy, found in the vessel of a friend, are prize of war, and that the goods of a friend, found in the vessel of an enemy, are to be restored, is believed to be a part of the original Law of Nations, as generally, perhaps universally, acknowledged. This rule is founded on the simple and intelligible principle, that war gives a full right to capture the goods of an enemy, but gives no right to capture the goods of a friend. In the practical exposition of this principle, so as to form the rule, the propositions that the neutral flag constitutes no protection to enemy's property, and that the belligerent flag communicates no hostile character to neutral property, are necessarily admitted. The cha 27 Marshall on Insurance, Vol. I. p. 423. racter of the property, taken distinctly and separately from other considerations, depends in no degree upon the character of the vehicle in which it is carried 28." To the same effect Mr. Wheaton observes, "Whatever Wheaton. may be the true original abstract principle of National Law on this subject, it is undeniable that the 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 29." Chancellor Kent, in like man- Chancellor ner, affirms it to be "a well settled principle of the Kent. Law of Nations, that neutral ships do not afford protection to enemy's property, and it may be seized if found on board of a neutral vessel beyond the limit of the neutral jurisdiction 30." "It is also a principle of the Law of Nations relative to neutral rights, that the effects of neutrals found on board of enemy's vessels shall be free; and it is a right as fully and firmly settled as the other, though, like that, it is often changed by positive agreement. The principle is to be found in the Consolato del Mare, and the property of the Neutral is to be restored without any compensation for detention and the other inconveniences incident to the capture. The former Ordinances of France of 1543, 1584, and 1681, declared such goods to be lawful prize; and Valin 31 justifies the Ordinances on the ground that the Neutral, by putting his 28 The Nereide, 9 Cranch's (American) Reports, p. 418. 29 Elements of International Law, Part IV. c. 3. § 19. 30 Commentaries on American property on board of an Law, Tom. I. § 124. 31 Comm. sur l'Ordonnance de la Marine, L. III. Tit. IX. Des Prises, Art. VII. Bynkershoek. Freight payable to neutral ship owners. enemy's vessel, favours the enemy's commerce, and agrees to abide the fate of the vessel. But it is fully and satisfactorily shown, by the whole current of modern authority, that the Neutral has a perfect right to avail himself of the vessel of his friend to transport his property; and Bynkershoek has devoted an entire chapter to the vindication of the justice and equity of this right32. " § 80. The Common Law of Nations, which declares the property of an enemy found on the High Seas in the vessel of a friend to be good prize of war, provides at the same time that the friendly shipowner shall not suffer any prejudice by reason of a belligerent doing justice to himself by confiscating the property of his enemy. If a friendly shipowner is simply the carrier of enemy's property on the High Seas, and does not seek in any way to evade or baffle enquiry on the part of a belligerent cruiser with a view to screen the cargo from capture, his conduct is not inconsistent with neutrality; and reason suggests that the neutral carrier, in case the cargo should be confiscated by the belligerent, should not incur any loss by reason of the voyage, which was in its inception perfectly innocent, being prematurely terminated in the interest of the belligerent. If a belligerent cruiser accordingly arrests the voyage of a neutral merchant vessel on the High Seas, and claims to have the cargo, as being the property of an enemy, delivered up to him or carried into port, as the case may be, the belligerent is bound to pay the neutral shipowner an adequate freight for the carriage of the cargo. The belligerent has no cause 32 Quæstiones Juris Publici, in navi amica repertas, id enim capio quod hostis est, quodque jure belli victori cadit. Kent's Commentaries, Tom. I. p. 128. of grievance against the neutral shipowner as long as the conduct of the latter is perfectly impartial: under such circumstances his rights, as a belligerent, are solely against his enemy; and if he takes possession of his enemy's property jure belli, he takes it under no better conditions than those under which the enemy can himself claim it, namely, with the lien of the freight upon it. A distinction however has been so far made in favour of the belligerent, that he is not burdened with an unreasonable præmium upon a voyage evidently hazardous, although such præmium may not have been inequitable as between the enemy-shipper and the neutral shipowner. Considerations of various kinds may have Measure of influenced the parties to the contract of affreightment, and may have rendered a contract for an advanced rate of freight real and fair between those parties; but the freight, as a burden upon the belligerent captors, does not come loaded with those considerations. The captor is bound indeed to pay an adequate remuneration for the carriage of the cargo of which he has taken possession by virtue of the right, which a state of war confers upon him, as against his enemy; but the charter-party is not the measure by which the captor is always bound, even where its terms are not. colourable nor liable to any imputation of fraud. For instance, the trade may be subject to extraordinary risk and hazard from its connection with the events of war and the activity and success of the belligerent cruisers; and it would be unreasonable for the captor to be called upon to make good an undertaking to pay an extraordinary premium, the specific purpose of which was to encourage the neutral shipowner to use his best efforts to defeat the captor's vigilance. The rate of freight given for the carriage of similar goods under freight. Witt. ordinary circumstances is the standard, by which the liabilities of the belligerent captor towards the neutral shipowner are to be measured 33. 34 § 81. The Conventional Law of Europe down to the commencement of the seventeenth century seems to have been almost uno tenore confirmatory of the rule of the Consolato del Mare, that enemy's goods found on board of a neutral vessel were good prize. Grand Pen- It is to the Grand Pensionary De Witt that the insionary De troduction of the principle of the neutral Flag covering the Cargo is due; and the treaty by which that statesman laid the foundation of the novel doctrine of Free Ship, Free Goods, was the Treaty of Paris 31, concluded on 18 April 1646, between Holland and France, whereby Louis XIV agreed that for four years Dutch vessels laden with enemy's property, not contraband of war, should with their cargoes be Treaty of exempt from capture. The language of this treaty 35 would seem to support the construction put upon it by De Witt, that it provided for the perfect freedom of the Dutch carrying trade; but De Witt found to his surprise that the French interpreted the Treaty merely to provide for the temporary suspension of the Ordonnance of King Henry III (A. D. 1584), according to which enemy's goods forming part of the cargo of a neutral vessel infected the remainder of the cargo and the vessel itself, and led to the condemnation of both, as good prize. In the course of a few years the Dutch Paris of 1646. 33 Vattel, Droit des Gens. L. III. c. 7. § 115, 116. The Twilling Riget, 5 Robinson, p. 82. 34 Dumont, Traités, Tom. VI. Part I. p. 342. 35 Art. I. En telle sorte que les Navires, qui trafiqueront avec la Patente de l'Amiral des Provinces Unies . . . . seront libres et rendront aussi toute leur charge libre, bien qu'il est dedans de la Marchandise, même des grains et légumes appartenans aux ennemis, sauf et excepté toutefois les marchandises de contrebande. |