sovereigns themselves, the profound ignorance in which they existed. (1) The opinions of Grotius, who, as we have seen, coincides with the Consolato, are according to Hübner unworthy of Grotius, "ni trop claires ni bien determineés, ni tout-a-fait exactes, ou dignes de Grotius." (2) Quoting the opinions of the jurists is, according to Hübner, like quoting Euclid and Newton to prove that two and two make four. Now, there is this difference, that to quote an authority on a fact which no one doubts, is an absurdity,-but, on a debated question to state that great minds that have dedicated their powers to its consideration, agree in their conclusions, and in some cases without the knowledge of each other's opinions, affords a very strong presumption that these conclusions are correct. Hübner also, knowing that the uniform practice of governments was invariably against him, says, with regard to usages, " si l'on trouve ces derniers contraires à l'equité naturelle, ils ne peuvent jamais devenir obligatoires: s'ils sont indifférens à son égard, ils n'obligent que très imparfaitement: si au contraire, ils lui sont conformes, ces usages deviennent sans contredit obligatoires; non pas en tant que ce sont des usages, mais en vertu du code universel des nations qui les erige en devoirs." (3) With regard to these statements, it may be remarked, that the practice of governments gives greater weight to usage, in indifferent matters, than is allowed by Hübner; but with regard to the question before us they convey a wrong impression, or rather are beside the purpose. Usage does not afford a proof, but it does afford a strong probability, that a course constantly pursued by all governments, is consistent with international equity. Thus, with the question of" free ships free goods," the uniform practice of governments offers a strong probability that the reverse of this maxim is a right of belligerents, since all governments have uniformly (1) De la Saisie, &c., Discours prel. XIII. XIV. (2) Id. xv. (3) Id. avant propos, § 7. exercised this right from the time of the Consolato, the earliest record existing on the subject, to the present day; not excepting the parties to the Armed Neutrality, who, as we shall see, tried to enforce one principle when they were neutral, but acted upon another when they became belligerent. Hübner, indeed, found insurmountable obstacles in every direction: authority was against him, and so was usage; and he therefore denied the value of either, and was obliged to rest his claims on arguments which show how little his ingenuity could discover for his own support. Treaties, he acknowledged, could not be brought to his aid: above the ignorance of the Prussian memorialists, who asserted that all the treaties ever concluded between maritime powers were in favour of their claims, he was aware that treaties are not uniform; and states expressly of the conventional code of nations, "de l'aveu de tout le monde, ses maximes n'obligent et ne peuvent obliger que les parties contractantes." (1) The greater attention has been paid to the treatise of Hübner, because he is, by far, the most important advocate of his peculiar doctrines that has ever appeared. Subsequent writers have done little more than copy his arguments and re-assert his opinions. Apart from the opinion he entertains on the question of "free ships free goods," his remarks are often valuable, and his principles sound, from which latter reason, when he entertains false positions, he is, as we have seen, entangled by his selfcontradictions. At the time he wrote, it appears probable that the trade of neutrals sustained greater interruptions than at a more recent period, especially in the delay of judgments, which, however occasioned by the mass of the attempted frauds of neutrals,-was an injury, in those cases when a defect in the proof of innocence justified a belligerent in the capture but did not expose the neutral to (1) De la Saisie, &c. II. 11. ch. 1. § 2. Lord Liver Opinion of condemnation. Still it was to this defect in the administration of the law that Hübner should have applied his efforts, and not to the denial of the right itself. In the one case he might have succeeded in obtaining a remedy, in the latter attempt he has certainly failed. In the same year with the treatise of Hübner, appeared Lord Liverpool's Discourse on the conduct of Great Britain in respect to Neutral Powers during the present War." (1) A better answer to Hübner could not be desired. Although partly written with especial reference to the Dutch treaties, it contains an admirable exposition of the general rights and duties of neutrality in maritime questions. The question of "free ships free goods" is treated under the different heads of natural equity, authority, and conventional law. The reasoning is very clear, and, as it appears to me, irresistible, and it is conveyed in a fine nervous style that is a fit vehicle for its manly logic. As the treatise of Hübner has been followed by his adherents, so has the treatise of Lord Liverpool been the armoury for the resort of those who have desired weapons for his side of the contest. It is very short, but it contains the best arrangement for arguments on the question that has yet been exhibited, and the well known criticism in the De Cive may be applied to Lord Liverpool's treatise, that, although small in compass, it is "the very marrow of wisdom" on the subject on which he delivers judgment. Contemporary with Hübner and Lord Liverpool was Vattel, whose work on the Law of Nations was published in 1758. He is an author whose impartiality, united to the power with which he treats his subject, have made him of more frequent reference than any modern writer on the Law of Nations; and his Swiss descent and (1) The edition here quoted is the 2nd, dated 1759; the treatise was reprinted in 1785, and also in 1800. education place him beyond the influence of bias in maritime discussions. It is in the following distinct and decisive manner that he records his judgment. 66 "If we find an enemy's effects on board a neutral ship, we seize them by the rights of war: but we are naturally bound to pay the freight to the master of the "vessel, who is not to suffer by such seizure." 66 "The effects of neutrals, found in an enemy's ship, are "to be restored to the owners, against whom there is no right of confiscation; but without any allowance for "detainer, decay, &c. The loss sustained by the neu"trals on this occasion is an accident to which they ex"posed themselves by embarking their property in an 66 enemy's ship; and the captor, in exercising the rights of "war, is not responsible for the accidents which may "thence result, any more than if his cannon kills a neu"tral passenger who happens unfortunately to be on "board an enemy's vessel." (1) We now come to that period, when, by the Armed Neutrality of 1780, an attempt was made to introduce, by force, the recognition of the principle that "free ships should make free goods." Exactly at this period appeared the works of two writers of great authority. The first of these is Moser, whose tenth volume, con- Opinion of taining his observations on neutrality, was printed in Moser. 1780, the very year of the Northern Confederacy. His testimony is of especial importance on the point, whether usage or convention had established a rule in Europe different from the law as we have seen it laid down by the elder jurists. Moser wrote principally on the Positive Law of Europe, as established by usage or compact; on (1) Vattel, droit des Gens, liv. III. ch. vII. § 115, 116. Opinion of which his research was of the most profound character; his publications on these inquiries continuing, at intervals, during the long literary career of fifty years. He had nothing to bias his partiality on the side of the old system, being, on the contrary, counsellor of state in Denmark, one of the parties to the Armed Neutrality. He, however, distinctly lays it down, when treating of neutral commerce, that when the property of a belligerent is found by his enemy in the ships or land-carriages of a neutral, such property is made prize by the captor, the ships or carriages being allowed to pass unmolested, and freight or carriage being paid by the captor. On the other hand, he says, that the treatment of the property of neutrals found in the ships of belligerents has not been of equal certainty, as we shall have occasion to see in considering the laws of France and Spain, so that he concludes that it is, at least, imprudent for a neutral to intrust his property to the ship of a belligerent. Examples of his positions are given by Moser, who is here quoted as the most satisfactory authority that can be desired, not so much upon the abstract right of the question, as upon the point whether usage had interfered to derogate from this right. (1) On the question of Right we have the contemporary authority of Lampredi, professor of jurisprudence at Pisa, whose testimony must be, at least, regarded as impartial, as, in common with all members of small maritime states, the interest of his countrymen was for an enlargement of the privileges of neutrals; and he himself frankly states that he wishes that the great nations of Europe would agree to establish among themselves the principle that "free ships make free goods." But although holding the desire to have a certain course of action established universally by convention, he allows that such a (1) Moser, Versuch B. xx. cap. 2, § 33, 34. |