ANSWER TO THE PRUSSIAN MEMORIAL, 1753.1

STATEMENT.

During the maritime war between France and Spain, on one side, and Great Britain and Holland, on the other, which terminated in the Peace of Aix la Chapelle, 1748, a controversy arose between the British and Prussian governments respecting the rights of neutral navigation and commerce. By the treaties of Breslau and Berlin, 1742, in which the province of Silesia had been ceded by Austria to Prussia, Frederick II. assumed the payment of a loan which had been made by certain English merchants to Maria Theresa in 1735, which was secured by a mortgage upon the revenues of that province. During the French war a number of vessels sailing under the Prussian flag, and cargoes claimed by Prussian subjects, under other neutral flags, had been captured and condemned in British prize courts as contraband of war, or as enemy's property. The British government having refused to indemnify the owners of such property, a commission was instituted by Frederick II. in 1751 to examine these claims, in order that they might be satisfied out of the Silesian loan, payment of which had been withheld for that purpose. In the following year this commission assigned to the Prussian claimants the British mortgage upon the revenues of Silesia by way of indemnity for their losses. The reason given for this action was that British cruisers had no right to capture neutral vessels going to or returning from an enemy's port, under the pretext that the cargo, or any part thereof, belonged to the enemies of Great Britain; that the treaties between Great Britain and neutral powers, confirmed by the declaration of the British ministry to Prussian diplomatic agents, had exempted such property from capture; therefore, the British courts of admiralty had proceeded contrary to the law of nations, to treaties, and to this declaration in condemning the property in question. Hence the declaration of the intention to make reprisals.

This declaration by Frederick II. was accompanied by an Exposition des Motifs, in which it was stated that, at the beginning of the war, the king had received verbal assurance from the British secretary of state, Lord Carteret, that ships, timber, and naval stores were not considered as contraband, and that Prussian vessels would not be interrupted, provided they were not found carrying munitions of war to the enemy, or provisions to blockaded ports; and that in other respects commerce should remain on the same footing as in time of peace. Prussian commerce was accordingly uninterrupted until 1745, when their vessels carrying ship timber were detained, and subsequently other vessels laden with goods incontestably free were captured. Remonstrances having been made to Lord Chesterfield, the British secretary of state, by the Prussian secretary, resident at London, the latter received, in 1747, a written answer, to the effect that Prussia could not claim the benefit of the special treaties with other neutral powers, but that in other respects there should be no interruption to Prussian navigators carrying on their trade in a lawful manner, conformably to the ancient usage recognized by neutral powers. The Exposition then laid down certain propositions of law, which are cited and reviewed in the British answer.

'See Wheaton's History of the Law of Nations, 206-217.

This report of the Prussian commission having been communicated to the British government, the whole matter was referred by it to two doctors of the civil law, the attorney general and the solicitor general, of whom the latter, Sir William Murray, prepared the following report.

The controversy was finally adjusted by a declaration, annexed to the treaty of alliance between Great Britain and Prussia in 1756, by which the king of Prussia agreed to remove the sequestration laid upon the Silesian debt, and pay the amounts due to the British creditors, and the British government agreed to pay the sum of £20,000, in extinction of all claims by the Prussian government and its subjects against Great Britain. The latter sum was afterwards paid and distributed among Prussian subjects who had proved their losses under the commission. Great Britain therefore yielded the point in controversy as to reprisals. But the following opinion is a very able exposition of the law of maritime capture as then observed. The Prussian contention for free ship, free goods, was not realized until a century afterwards.

OPINION.

To the King's Most Excellent Majesty:

In obedience to your majesty's commands, signified to us by his grace the Duke of Newcastle, we have taken the memorial, sentence of the Prussian commissioners, and lists marked "A" and "B," which were delivered to his grace by Monsieur Michell, the Prussian secretary here, on the 23d of November last; and also the printed "Exposition des Motifs," etc., which was delivered to his grace on the 13th of December last, into our serious consideration. And we have directed the proper officer to search the registers of the court of admiralty, and inform us how the matter appeared from the proceedings there, in relation to the cases mentioned in the said lists A and B, which he has accordingly done. And your majesty having commanded us to report our opinion concerning the nature and regularity of the proceedings under the Prussian commission, mentioned in the said memorial, and of the claim or demand pretended to be founded thereupon, and how far the same are consistent with or contrary to the law of nations, and any treaties subsisting between your majesty and the King of Prussia, the established rules of admiralty jurisdiction, and the laws of this kingdom:

For the greater perspicuity, we beg leave to submit our thoughts upon the whole matter in the following method: First, to state the clear, established principles of law; secondly, to state fact; thirdly, to apply law to the fact; fourthly, to observe upon the questions, rules, and reasonings alleged in the said memorial, sentence of the Prussian commissioners, and Exposition des Motifs, etc., which carry the appearance of objections to what we shall advance upon the former heads.

First, as to the law: When two powers are at war, they have a right to make prizes of the ships, goods, and effects of each other upon the high seas. Whatever is the property of the enemy may be acquired by capture at sea; but the property of a friend cannot be taken, provided he observes his neutrality. Hence the law of nations has established that the goods of an enemy on board the ship of a friend may be taken; that the lawful goods of a friend on board the ship of an enemy ought to be restored; that the contraband goods going to the enemy, though the property of a friend, may be taken as prize, because supplying the enemy with what enables him to better carry on the war is a departure from neutrality.

By the maritime law of nations, universally and immemorially received, there is an established method of determination whether the capture be or be not lawful prize. Before the ship or goods can be disposed of by the captor, there must be a regular judicial proceeding, wherein both parties may be heard, and condemnation thereupon as prize, in a court of admiralty, judging by the law of nations and treaties. The proper and regular court for these condemnations is the court of that state to whom the captor belongs.

The evidence to acquit or condemn, with or without costs or damages, must, in the first instance, come merely from the ship taken, viz., the papers on board, and the examination on oath of the master and other principal officers; for which purpose, there are officers of admiralty, in all the considerable seaports of every maritime power at war, to examine the captains and other principal officers of every ship brought in as prize, upon general and impartial interrogatories. If there do not appear from thence ground to condemn as enemy's property or contraband goods going to the enemy, there must be an acquittal, unless, from the aforesaid evidence, the property shall appear so doubtful that it is reasonable to go into further proof thereof.

A claim of ship or goods must be supported by the oath of somebody; at least, as to belief. The law of nations requires good faith; therefore every ship must be provided with complete and genuine papers, and the master, at least, should be privy to the truth of the transaction. To enforce these rules, if there be false or colorable papers; if any papers be thrown overboard; if the master and officers examined in praeparatorio grossly prevaricate; if proper ship's papers are not on board; or if the master and crew cannot say whether the ship or cargo be the property of a friend or enemy, the law of nations allows, according to the different degrees of misbehavior or suspicion arising from the fault of the

ship taken, and other circumstances of the case, costs to be paid or not to be received by the claimant in case of acquittal and restitution. On the other hand, if a seizure is made without prob. able cause, the captor is adjudged to pay costs and damages; for which purpose, all privateers are obliged to give security for their good behavior, and this is referred to and expressly stipulated by many treaties.1

Though, from the ship's papers and the preparatory examinations, the property do not sufficiently appear to be neutral, the claimant is often indulged with time to send over affidavits to supply that defect. If he will not show the property, by sufficient affidavits, to be neutral, it is presumed to belong to the enemy. Where the property appears from evidence not on board the ship, the captor is justified in bringing her in, and excused paying costs, because he is not in fault, or, according to the circumstances of the case, may be justly entitled to receive his costs.

If the sentence of the court of admiralty is thought to be erroneous, there is in every maritime country a superior court of review, consisting of the most considerable persons, to which the parties who think themselves aggrieved may appeal; and this superior court governs by the same rule which governs the court of admiralty, viz., the law of nations, and the treaties subsisting with that neutral power whose subject is a party before them. If no appeal is offered, it is an acknowledgment of the justice of the sentence by the parties themselves, and conclusive.

This manner of trial and adjudication is supported, alluded to, and enforced by many treaties.2 In this method all captures at sea were tried, during the last war, by Great Britain, France, and Spain, and submitted to by the neutral powers. In this method, by courts of admiralty acting according to the laws of nations and particular treaties, all captures at sea have been immemorially adjudged of in every country of Europe. Any other method of trial would be manifestly unjust, absurd, and impracticable.

Though the law of nations be the general rule, yet it may, by mutual agreement between two powers, be varied or departed from; and where there is an alteration or exception introduced by particular treaties, that is the law between the parties to the treaty, and the law of nations only governs so far as it is not derogated from by the treaty. Thus, by the law of nations, where two powers are at war, all ships are liable to be stopped and examined to whom they belong, and whether they are carrying contraband to

Referring to several treaties.

Referring to several treaties and to Heineccius' Treatise de Navibus ob Vecturam Vetitarum Mercium Commissis, cap. 2, §§ 17, 18.

the enemy; but particular treaties have enjoined a less degree of search on the faith of producing solemn passports and formal evidences of property, duly attested. Particular treaties, too, have inverted the rule of the law of nations, and, by agreement, declared the goods of a friend on board the ship of an enemy to be free, as appears from the treaties already mentioned and many others. So, likewise, by particular treaties, some goods, reputed contraband by the law of nations, are declared to be free.

If a subject of the King of Prussia is injured by, or has a demand upon, any person here, he ought to apply to your majesty's courts of justice, which are equally open and indifferent to foreigner or native. So, vice versa, if a subject here is wronged by a person living in the dominions of his Prussian majesty, he ought to apply for redress in the King of Prussia's courts of justice. If the matter of complaint be a capture at sea during war, and the question relative to prize, he ought to apply to the judicatures established to try these questions.

The law of nations, founded upon justice, equity, convenience, and the reason of the thing, and confirmed by long usage, does not allow of reprisals, except in case of violent injuries, directed or supported by the state, and justice absolutely denied, in re minime dubia, by all the tribunals, and afterwards by the prince. Where the judges are left free, and give sentence according to their conscience, though it should be erroneous, that would be no ground for reprisals. Upon doubtful questions different men think and judge differently; and all a friend can desire is that justice should be as impartially administered to him as it is to the subjects of that prince in whose courts the matter is tried.

Secondly, as to the fact: It appeared that as to list A, which contained eighteen ships and their cargoes, eight had been restored voluntarily or by sentence, and could not therefore be complained of. As to the four next, the goods must be admitted to have been rightly condemned, either as enemy's property or contraband, for they are not now mentioned in lists A or B. If contraband, the ship could have neither freight nor costs, and the sentences were favorable in restoring the ships upon presumption that the owners of the ships were not acquainted with the nature of the cargo, or owners thereof. If enemy's property, the ships could not be entitled to freight, because the bills of lading were false, and purported the property to belong to Prussians. The ships could not be entitled to costs, because the cargoes, or

Grotius de Jure Belli ac Pacis, lib. 3, cap. 2, §§ 4, 5.