4. To a trade closed before a war, but open during its continuance.

And in order to carry those restrictions into effect, a right of examination or visit must be exercised upon vessel, goods, or both.

§ 169 b.

We now proceed to the rules of international law in regard to the liability to capture of ships and goods engaged in ordinary trade.

Nationality of goods and vessel as making them liable

or not

very

We may say, in general, that until recent liable to capture. times two rules have contended with one another -the rule that the nationality of property on the sea determines its liability to capture, or neutral property is safe on the sea and enemy's property may be taken wherever found, and the rule that the nationality of the vessel determines the liability to capture, or that the flag covers the cargo. By the first rule the neutral might safely put his goods into any vessel which offered itself, but could not convey the goods of his friend, being one of the belligerents, without the risk of their being taken by the other. By the second, when once the nationality of the ship was ascertained to be neutral, it went on its way with its goods in safety, but if it belonged to the enemy it exposed neutral goods on board, as well as other, to be taken. This latter rule consists of two parts, that free ships make free goods, and that enemy's ships make goods hostile, but the two are not necessarily, although parts of the same principle, connected in practice; the former may be received without the latter.

It was a thing of secondary importance both for the neutral and for a belligerent, being a naval power, how the rules should shape themselves in regard to the neutral's goods in hostile bottoms. And his own goods on board his own vessel were freely admitted to be safe. Hence justice and a spirit of concession to the neutral united in favour of the rule that his goods were safe by whatever vessel conveyed; although not safe from sundry inconveniences-from search and from capture of the hostile conveyance.

On the other hand, it was of great importance to the belligerent that the flag should not cover his enemy's goods, or that free ships should not make goods free; for thus, much of his power at sea to plunder or annoy his enemy would be taken away. To the neutral the opposite rule, that free ships should make goods free, was of great importance; for the carrying trade, a part of which war would in other ways throw into his hands, would thus be vastly augmented. But the belligerent's interests on the whole prevailed. The nations, especially Great Britain,

which had the greatest amount of commerce, had also the greatest naval force, with which they could protect themselves and plunder their foes, and therefore felt small need in war of hiding their goods in the holds of neutral ships. Thus for a long time the prevailing rule was that neutral goods are safe under any flag, and enemy's goods unsafe under any flag. But at length neutral interests and the interests of peace preponderated; and the parties to the treaty of Paris in 1856, Great Britain among the rest, adopted for themselves the rule which will be valid in all future wars, and is likely to be universal, that free ships are to make goods free. Likely to be universal, we say, unless a broader rule shall exempt all private property on the sea engaged in lawful trade from capture.

§ 170.

hostile

goods.

The ship of a neutral in which hostile goods are found, has been sometimes, particularly by French and Spanish Treatment of ordinances, treated as if engaged in a guilty busi- vessels conveying ness, and visited with confiscation. But modern practice, whilst it seized the enemy's goods, has been in favour of paying freight to such neutral, that is, not freight for the part of the voyage performed, but for the whole, capture of the goods being regarded as equivalent to delivery. But a neutral ship engaged in the enemy's coasting trade cannot claim freight for hostile goods on board, because it has put itself into the position of a hostile vessel.1

tral goods in captured enemy's

On the other hand, when a hostile vessel is taken with the neutral's property on board, the captor is entitled to Freight on neufreight, if the goods are carried to their port of destination. But if the goods are not carried to their original destination within the intention of the contracting parties, no freight is due.2

vessels.

foes protected in

Hostile ships, with whatever goods on board, have been uniformly regarded as prizes of war. But from the Coast fisheries of operations of war one class of vessels engaged in an war by some naeminently pacific employment, and of no great ac- tions. count in regard to national resources, has often been exempted; we refer to vessels engaged in coast fisheries. It appears that this exemption was allowed centuries ago. Froissart is cited as saying in his Chronicle' that' fishermen on the sea, whatever war there be in France and England, do no harm to one another : nay, rather, they are friends and aid one another in case of need.' The liberty of the enemy's fishermen in war has been protected by many French ordinances, and the English observed a reciprocal indulgence; but in 1798, during the French revolution, the

1 Compare Wildman, ii. 154.

2 Ib. ii. 162.

English government ordered its cruisers to seize French and Dutch fishermen and their smacks. Soon after, on remonstrance from the first consul of France, the order was withdrawn, as far as the coast fisheries in the strict sense were concerned; and during the wars of the empire this peaceful and hardy class of labourers enjoyed exemption from capture. In the instructions given by the French minister of marine to naval officers in 1854, at the outbreak of the late war with Russia, we find the same rule followed. 'You must put no hindrance,' say the instructions, 'in the way of the coast fishery even on the coasts of the enemy, but you will be on your guard that this favour, dictated by an interest of humanity, draws with it no abuse prejudicial to military or maritime operations. If you are employed in the waters of the White Sea, you will allow to continue without interruption (repression in case of abuse excepted) the exchange of fresh fish, provisions, utensils and tackling, which is carried on habitually 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.1

Justice of the

§ 171.

Having seen what is the actual state of international law in regard to neutral trade, we may now inquire whether rules respecting' any definite rule of justice applicable to such trade can be laid down.

neutral trade considered.

Admitting for the present that capture of private property on the sea is justifiable, we ask which of the two principles is conformable 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 juris. diction 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.

1 Compare Ortolan, ii. 44.

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 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 his 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 favourable 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.1

§ 172.

In the course of the centuries during which international law has been growing up, rules have been fluctuating Former practice as it respects the liabilities of neutral trade, and con- in regard to neuventional law has often run counter to prevailing

tral trade.

1 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.

Р

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.

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 seventeenth and eighteenth 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 eighteenth century neutral nations endeavoured 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.

trations.

§ 173.

One of the earliest provisions of medieval Europe within Historical illus- 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