Treaties. Treaties, obtained the assent of Spain (A. D. 1650) and of Dutch Portugal (A. D. 1661), to the provision that the goods of an enemy found on board of a neutral vessel should be free, whilst the goods of a neutral found on board of an enemy's vessel were to be good prize. In 1662 (27 April) the Dutch succeeded in inducing the French to enter into a Treaty of identical import with the Treaties which they had previously concluded with Spain and with Portugal. England had meanwhile entered into similar engagements with Portugal in 165436, and she conceded the British same privilege to the Dutch in 1667, as the price of an alliance between the States General and England against France. This privilege was renewed in the following year at Breda, and again in the Treaty of Commerce concluded at London in 167437, and the relations between Holland and England continued to be so far exceptional to the Common Law of the Sea down to 1756, when on the refusal of the States General to fulfil certain stipulations of the Treaty of 1678, England declared that she would not recognise any longer this treaty privilege in favour of the Dutch. In 166738 England admitted the principle of Free Ship, Free Goods, into a treaty concluded with Spain, and in 1677 into a treaty concluded with France. The same principle was also recognised in the Treaties of Utrecht (A.D. 1713) as Treaties of between France and Great Britain, France and the United Provinces, Spain and Great Britain, Spain and the United Provinces. Denmark, Sweden, and Russia, had severally entered into special treatyengagements with various Powers prior to the Armed Neutrality of 1780, which comprised amongst 36 Dumont, Tom. VI. Part II. p. 84. P. 49. 38 Annual Register, A.D. 1780, 37 Ibid. Tom. VIII. Part I. p. 61. Utrecht. Neutrality of 1780. Armed its principles that of Free Ship, Free Goods, but not the correlative principle of Enemy Ship, Enemy Goods. Prussia had, on the other hand, admitted both principles into a treaty concluded with Sweden in 1762, and she acceded to the Armed Neutrality on 8 May 1781. The Roman Emperor of the Germans had likewise admitted both principles into a treaty concluded with Spain in 17259; and he entered into a treaty with Russia on 10 July 1781, which recognised the principle of Free Ship, Free Goods. The King of the Two Sicilies acceded to the Armed Neutrality on 10 Feb. 1783, but the action of the Northern Confederacy was suspended by the General Peace concluded in that year. The convenience of the principle that the neutral Flag covers the Cargo had thus been very generally recognised by the Nations of Europe prior to the war of the first French Revolution; since which event several of the European Powers have entered into treaty-engagements in affirmance of this principle, not merely with various European Powers, but with the United States of America, and with several independent States of the South American Continent. Meanwhile the rule of the Consolato del Mare has been held to constitute the Common law of the Sea, and Nations have acted upon it as such, when no treaty-engagements 40 have bound them to observe a contrary practice. § 82. It would appear from the above survey that there are three distinct systems of law in regard to the exercise of Belligerent Right upon the High Seas, which have found favour from time to time with 39 Dumont, Tom. VIII. Part II. p. 115. 40 A very complete review of the Treaties on the principle of Free Ship, Free Goods, will be found in Manning's Commentaries on the Law of Nations, pp. 224280. tems of Law. particular Nations, and which are departures from the system of the middle ages, or as it may be conveniently termed, the Rule of the Consolato del Four sys Mare. The latter system may be justly said to Maritime rest upon principles of Natural Right, and has commended itself to general acceptation as being in conformity with the great maxim of all justice, "suum cuique"." The formula which expresses it, may be thus stated : Enemy Ship, Enemy or Neutral Goods. Neutral Ship, Neutral or Enemy Goods. solato del In other words, there is no implied connection be- The Contween the character of the ship and the character Mare. of the cargo; and the immunity of neutral property from capture, whether it be the ship itself, or the cargo laden in the ship, is consistent with the confiscation of enemy's property. The belligerent's right of prize under this system is restricted to the property of his enemy; and whilst his enemy's property in any form on the High Seas is good prize, neutral property in any form is entitled to pass free. $83. The first systematic departure from the Rule of the Consolato del Mare was made by France. The French The Ordinance of Charles II (17 December 1400) 42, System. which is the earliest extant French Ordinance, had forbidden the Admiral to condemn any ship or merchandise which did not belong to an enemy; and a similar injunction is found in the Règlement of 1517; 3 but the Règlement of Francis I (A. D. 1543)* declared a neutral ship carrying enemy's goods, and neutral goods found on board an enemy's ship, to be good prize. This Règlement proceeds upon the principle 41 Heffter, § 162. 42 Lebeau, Code des Prises, Tom. I. p. 1. 43 Ibid. p. 5. 44 Lebeau, Tom. I. p. 9. 43 The Dutch of enemy's property infecting neutral property; and the formula expressing it may be thus stated: Enemy Ship, Enemy Goods. Enemy Goods, Enemy Ship. 45 The same principle is affirmed by the Edict of Henry III. (A. D. 1584) 5. Sir Leoline Jenkins, writing in 166846, seems to doubt whether these Ordinances were ever acted upon in the French Courts of Prize, "the design of the first publishing of them being," in his opinion, "only in terrorem for the purpose of putting an end to neutral frauds in concealing enemy's interests.” There is no doubt, however, that this principle was embodied in the Famous Ordonnance de la Marine of Louis XIV (A.D. 1681)* which formed the Rule of the French Admiralty Courts down to 1744, and that those Courts only allowed of any relaxation in this rule in cases where France had entered into particular treaty-engagements of an exceptional character. § 84. The second systematic departure from the Rule of the Consolato del Mare was brought about by the Dutch in the interest of the Neutral Shipowner, but at the expense of the Neutral Merchant. It proceeds upon the principle that the ship and her cargo are not severable in interest, and that the hostile or neutral character of the ship shall alone be regarded in determining the question as to the cargo being prize or no prize. The formula expressing this rule may be stated as follows: Free Ship, Free Goods. Enemy Ship, Enemy Goods. According to this rule the goods of a neutral found on board the ship of an enemy are good prize, whilst 45 Lebeau, Tom. I. p. 19. Vol. III. p. 720. 47 Lebeau, Tom. I. p. 80. the goods of an enemy found on board the vessel of a neutral are exempt from confiscation. Grotius, in commenting on the maxim of " Enemy Ship, Enemy Goods," most appositely remarks, that "in order that a thing may become ours by the Right of War, it is requisite that it should have belonged to the Enemy. The things which are in the hands of our enemy, as for example in his towns, or under his protection, but of which the owners are neither the subjects of our enemy, nor actuated by hostile intentions towards us, cannot be acquired by war1s " He further goes on to say, "wherefore what is said, that goods found in enemy's ships are to be regarded as enemy's property, ought not to be accepted as a settled rule of the Law of Nations, but as raising a certain presumption, which may be rebutted by valid proofs to the contrary; and so it was of olden time adjudged by a full Senate, when war was raging with the Hanse Towns in 1338, and that judgment has become Law 49." § 85. The third systematic departure from the Rule of the Consolato del Mare has been made with the general consent of all the European Powers, with the exception of Spain. It proceeds upon the principle which was affirmed by the Armed Neutrality of the Baltic Powers in 178050, when it declared, that "the property of the subjects of Belligerent Powers should be free, if found on board of neutral vessels, with the exception of contraband of war;" but it leaves untouched the immunity, which neutral merchandise enjoys under the Common Law of Nations, although it be found on board of an enemy's vessel. The Declaration of Maritime Law made by 48 De Jure Belli et Pacis, L. 50 Martens, Récueil, T. III. III. c. 6. Tit. 5. 49 Ibid. Tit. 6. PART II. p. 158. M |