(5) LIABILITY TO SEIZURE OF ENEMY'S PRIVATE PROPERTY ON HIGH SEAS UNDER NEUTRAL FLAG. § 342. In an opinion already cited (supra, § 330), given in 1753 by Sir G. Lee, then judge of the prerogative court; Dr. Paul, His Majesty's advocate-general; Sir D. Rider, His Majesty's attorney-general, and Mr. Murray (afterward Lord Mansfield), His Majesty's solicitor-general, is found the following: "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 contraband goods going to the enemy, though the property of a friend, may be taken as prizes; because supplying the enemy with what enables him better to carry on the war is a departure from neutrality." This opinion was given to Mr. Jay in 1794 by Sir W. Scott (Lord Stowell) and "I believe it cannot be doubted but that by the general law of nations the goods of a friend found in the vessel of an enemy are free, and the goods of an enemy found in the vessel of a friend are lawful prize. "It is true that sundry nations, desirous of avoiding the inconveniences of having their vessels stopped at sea, ransacked, carried into port, and detained, under pretense of having enemy's goods on board, have, in many instances, introduced, by their special treaties, another principle between them, that enemy bottoms shall make enemy goods. and friendly bottoms friendly goods; a principle much less embarrassing to commerce, and equal to all parties in point of gain and loss; but this is altogether the effect of particular treaty, controlling in special cases the general principle of the law of nations, and therefore taking effect between such nations only as have so agreed to control it." Mr. Jefferson, Sec. of State, to Mr. Genet, July 24, 1793. 1 Am. St. Pap. (For. To same effect see Mr. Jefferson to Mr. Morris, Aug. 16, 1793. 1 Wait's St. Pap., That Mr. Jefferson's statement, in his note of July 24, 1793, that "he believed it was not to be doubted that, by the general law of nations, the goods of an enemy found in the vessel of a friend are lawful prize," was meant by him as appealing to the law of former times, may be inferred from Mr. Madison's letter to Mr. Jefferson, of June 29, 1793, in which he maintained that the principle that free ships make free goods is already ingrafted in the modern law of nations. And about the same time Mr. Pinckney, the American minister at London, in his correspondence with the British secretary for foreign affairs, Lord Gren ville, claimed the principle of free ships making free goods as then actually established by general usage. 3 Rives' Madison, 347.348; citing 1 Wait's St. Pap., 404. "Mr. Jefferson's assertion (in his answer to Genet of July 24, 1793), of the principle that enemy's property is liable to capture and condemnation in the vessel of a friend is not absolute. His words are, 'I believe it cannot be doubted."" 6 J. Q. Adams' Mem., 162 (July 7, 1823). On June 11, 1824, "Mr. Wirt (at Cabinet meeting) insisted that we could not, without inconsistency, deny the right of belligerents by the law of nations to take the property of euemies in neutral vessels, and read in the State Papers Mr. Jefferson's letter to Genet upon that subject. I considered the law of nations upon this point as unsettled; but Mr. Wirt's argument was supported by decisions of the Supreme Court, against which the executive Government could not safely assume an adversary principle. That knot of national law will ultimately resolve itself into a question of force." Ibid., 382. That the United States acknowledged that the rule of "free ships, free goods" was not part of the law of nations at the breaking out of the war of the first French Revolution is maintained in 3 Phill., Int. Law. (3 ed.), 315 ff. As to subsequent action of the United States in reference to that rule, see ibid., 345, 354, 364. In the same line may be consulted article by Mr. A. H. Everett, 44 N. Am. Rev., 24. "Another source of complaint with Mr. Genet has been that the English take French goods out of American vessels, which, he says, is against the law of nations, and ought to be prevented by us. On the contrary, we suppose it to be long an established principle of the law of nations that the goods of a friend are free in an enemy's vessel, and an enemy's goods lawful prize in the vessel of a friend. The inconvenience of this principle which subjects merchant vessels to be stopped at sea, searched, ransacked, led out of their course, has induced several nations latterly to stipulate against it by treaty, and to substitute another in its stead, that free bottoms shall make free goods, and enemy's bottoms enemy's goods; a rule equal to the other in point of loss and gain, but less oppressive to commerce. As far as it has been introduced, it depends on the treaties stipulating it, and forms exceptions in special cases to the general operation of the law of nations. We have introduced it into our treaties with France, Holland, and Prussia, and French goods found by the two latter nations in American bottoms are not made prize of. It is our wish to establish it with other nations. But this requires their consent also, is a work of time, and in the meanwhile they have a right to act on the general principle, without giving to us, or to France, cause of complaint." Mr. Jefferson, Sec. of State, to Mr. Morris, Aug. 16, 1793. MSS. Inst., Ministers. The maxim "free ships make free goods" is not an accepted principle of the law of nations, but was introduced as an exception thereto in the 23d section of the first French-American commercial treaty. "This stipulation was intended to operate (indeed it was its sole object, and otherwise could have no operation at all) when one of the parties should be at war with a nation or nations with whom the other should be at peace." The maxim, however, was set aside by France during her war with England in 1796-'97. Mr. Pickering, Sec. of State, to Mr. Pinckney, Jan. 16, 1797. 1 Am. St. Pap. (For. Rel.), 559. "It is possible that in the pending negotiations for peace (July, 1797, between Great Britain and France) this principle of free ships making free goods may be adopted by all the great maritime powers; in which case the United States will be among the first of the other powers to accede to it and to observe it as a universal rule." Mr. Pickering, Sec. of State, to Mr. J. Q. Adams, July 17, 1797. MSS. Inst. "The principle of making free ships protect enemy's property has always been cherished by the maritime powers who have not had large navies, though stipulations to that effect have been in all wars more or less violated. In the present war, indeed, they have been less respected than usual, because Great Britain has held more uncontrolled the command of the sea, and has been less disposed than ever to concede the principle; and because France has disdained most of the received and established ideas upon the laws of nations, and considered herself as liberated from all the obligations toward other states which interfered with her present objects or the interests of the moment." Mr. J. Q. Adams, minister at Berlin, to the Sec. of State, Oct. 31, 1797. 2 Am. "It is a general rule that war gives to a belligerent power a right to seize and confiscate the goods of his enemy. However humanity may deplore the application of this principle, there is perhaps no one to which man has more universally assented, or to which jurists have more uniformly agreed. Its theory and its practice have unhappily been maintained in all ages. This right, then, may be exercised on the goods of an enemy wherever found, unless opposed by some superior right. It yields by common consent to the superior right of a neutral nation to protect, by virtue of its sovereignty, the goods of either of the belligerent powers found within its jurisdiction. But can this right of protection, admitted to be possessed by every Government within its mere limits in virtue of its absolute sovereignty, be communicated to a vessel navigating the high seas? "It is supposed that it cannot be so communicated, because the ocean being common to all nations no absolute sovereignty can be acquired in it. The rights of all are equal, and must necessarily check, limit, and restrain each other. The superior right, therefore, of absolute Sovereignty to protect all property within its territory ceases to be superior when the property is no longer within its own territory, and may be encountered by the opposing acknowledged right of a belligerent power to seize and confiscate the goods of his enemy. If the belligerent permits the neutral to attempt, without hazard to himself, thus to serve and aid his enemy, yet he does not relinquish the right of defeating that attempt whenever it shall be in his power to defeat it. Thus it is admitted that an armed vessel may stop and search at sea a neutral bottom, and may take out goods which are contraband of war without giving cause of offense or being supposed in any degree to infringe neutral rights; but this practice could not be permitted within the rivers, harbors, or other places of a neutral where its sovereignty was complete. It follows, then, that the full right of affording protection to all property whatever within its own territory, which is inher ent in every Government, is not transferred to a vessel navigating the high seas. The right of a belligerent over the goods of his enemy within his reach is as complete as his right over contraband of war, and it seems a position not easily to be refuted that a situation that will not protect the one will not protect the other. A neutral bottom, then, does not of right, in cases where no compact exists, protect from his enemy the goods of a belligerent power." Letter of Messrs. Pinckney, Marshall, and Gerry to the French minister of foreign affairs, M. de Talleyrand, Jan. 17, 1798. 2 Am. St. Pap. (For. Rel.), 171. Quoted, with approval, by Sir W. Vernon-Harcourt, in Historicus on Int. Law, 208, 209. "The question whether neutral ships shall protect enemy's property is, indeed, important. It is of so much importance that if the principle of free ships, free goods were once really established and honestly observed it would put an end forever to all maritime war, and render all military navies useless. However desirable this may be to humanity, how much soever hilosophy may approve it and Christianity desire it, I am clearly convinced it will never take place. The dominant power on the ocean will forever trample on it. The French would despise it more than any nation in the world, if they had the maritime superiority of power, and the Russians next to them." President Adams to Mr. Marshall, Sec. of State, Oct. 3, 1800. 9 John Adams' "When Europe assumed the general form in which it is occupied by the nations now composing it, and turned its attention to maritime commerce, we found among its earliest practices, that of taking the goods of an enemy from the ship of a friend; and that into this practice every maritime state went sooner or later as it appeared on the theater of the ocean. If, therefore, we are to consider the practice of nations as the sole and sufficient evidence of the law of nature among nations, we should unquestionably piace this principle among those of the natural laws. But its inconveniences, as they affected neutral nations peaceably pursuing their commerce, and its tendency to embroil them with the powers happening to be at war, and thus to extend the flames of war, induced nations to introduce by special compacts, from time to time, a more convenient rule, that free ships should make free goods; and this latter principle has, by every maritime nation of Europe, been established, to a greater or less degree, in its treaties with other nations; insomuch, that all of them have, more or less frequently, assented to it as a rule of action in particular cases. Indeed, it is now urged, and I think with great appearance of reason, that this is the genuine principle dictated by national morality; and that the first prac tice arose from accident, and the particular convenience of the states which first figured on the water, rather than from well-digested reflections on the relations of friend and enemy, on the rights of territorial jurisdiction, and on the dictates of moral law applied to these. Thus it has never been supposed lawful, in the territory of a friend, to seize the goods of an enemy. On an element which nature has not subjected to the jurisdiction of any particular nation, but has made common to all for the purposes to which it is fitted, it would seem that the particular portion of it which happens to be occupied by the vessel of any nation, in the course of its voyage, is, for the moment, the exclusive property of that nation, and, with the vessel, is exempt from intrusion by any other, and from its jurisdiction, as much as if it were lying in the harbor of its sovereign. In no country, we believe, is the rule otherwise, as to the subjects of property common to all. "Shall two nations, turning tigers, break up in one instance the peaceable relations of the whole world? Reason and nature clearly pronounce that the neutral is to go on in the enjoyment of all its rights, that its commerce remains free, not subject to the jurisdiction of another, nor consequently its vessels to search or to inquiries whether their contents are the property of an enemy or are of those which have been called contraband of war. "Nor does this doctrine contravene the right of preventing vessels from entering a blockaded port. This right stands on other ground. When the fleet of any nation actually beleaguers the port of the enemy, no other has a right to enter their line, any more than their line of bat tle on the open sea, or their lines of circumvallation, or of encampment, or of battle array on land. The space included within their lines in any of those cases, is either the property of their enemy, or it common property assumed and possessed for the moment, which cannot be intruded on, even by a neutral, without committing the very trespass we are now considering, that of intruding into the lawful possession of a friend. "But though we would not then, nor will we now, engage in war to establish this principle [of free ships making free goods] we are nevertheless sincerely friendly to it. We think that the nations of Europe have originally set out in error; that experience has proved the error. oppressive to the rights and interests of the peaceable part of mankind; that every nation but one has acknowledged this by consenting to the change, and that one has consented in particular cases; that nations have a right to correct an erroneous principle, and to establish that which is right as their rule of action; and, if they should adopt measures for effecting this in a peaceable way, we shall wish them success, and not stand in their way to it. But should it become, at any time, expedient for us to co-operate in the establishment of this principle, the opinion of the executive, on the advice of its constitutional 257 S. Mis. 162-—VOL. III——17 |