privilege cannot be claimed unless from express convention. Lampredi states, that there is an apparent collision between the right of a belligerent to prevent such intercourse as may assist his enemy, and the right of a neutral to be perfectly free from the effects of a war in which he is not concerned. But, on weighing the relative importance of the two cases, he says, that the neutral has really but a very slight injury to dread, as the belligerent pays him freight on the captured property; while, on the other hand, the consequence to belligerents would be incalculable if a neutral were allowed to strengthen the other belligerent, and enable him to prolong hostilities; every such increase of force would make the neutral the cause of the increased bloodshed and devastation which such prolongation of the contest occasioned. He observes, that there is hardly any right which does not in some manner infringe some other right, and that a suspension which is reparable, can never be allowed to weigh against a loss which is irreparable. He says that the capture of enemies' property in neutral ships stands on completely a different footing from the denial of all commerce with an enemy; the latter obstruction would do the greatest injury to neutrals, the former falls almost entirely on belligerents. He examines Hübner's arguments, especially that founded on the fiction of a ship being part of her state's territory, which he shows to be quite untenable. Treaties, he says, are so much at variance with each other, that no conclusion can be deduced from their contradictory provisions. The declamation on the asserted tyranny of taking an enemy's property from a neutral ship is therefore, he concludes, unreasonable, the principle of doing so being founded on reason, and conformable to justice. In the ensuing section, Lampredi considers the case of the property of neutrals found on board the ship of an enemy, which he says must be restored to the owners, as belligerents have no claims upon the movable property of a neutral even when found in the territory of an enemy, R Opinion of Opinion of much less on board a ship, to which no territorial character is attached. (1). An opinion contrary to the above, has been given by two modern writers, Klüber and De Martens. In the short passage which he dedicates to this subject, Klüber is, as is usual with him, very learned in his references, but very inconclusive in his reasoning. He says that a ship ought to be regarded as a floating colony of the state to which she belongs; that, in consequence, no belligerent has a right to visit neutral ships at sea, nor to capture enemy's property laden on board them. Thus, Klüber places the denial of the right of search, and the principle that "free ships make free goods," on the same footing, namely, the territoriality of ships at sea, which we have already discussed. Klüber also says that neutral goods found on board an enemy's ship are not liable to confiscation, because such confiscation does not ensue when neutral property is found on an enemy's territory. (2) Similar is the opinion of De Martens, who, like Klüber, only dedicates about a page to the subject, and gives no reasons for his opinion, except that a ship is part of the territory of her state. Both writers say, that the practice of Europe has been by no means uniform, and both, giving no arguments to examine, leave their unsupported assertions without any positions to controvert. (3) (1) Lampredi, du Commerce (2) Klüber. Par. II. tit. 1. ch. II. (3) De Martens Précis, liv. VIII.ch. VII. § 316. At the time of the second Armed Neutrality, in 1800, a variety of pamphlets appeared on each side of the question, which I have a difficulty in mentioning, because I have only seen those on one side, excepting a little treatise by Büsch. But it has been by no fault of mine that I have not seen the treatise of Schlegel, which was much discussed at the time, and which appears to Kent. I believe that I have now cited all the European writers Opinion of who have either any pretensions to be regarded as authorities on either side of the question, or whose notoriety has made the examination of their opinions desirable. I shall conclude this division by quoting the work of an American writer, of great and deserved eminence, Chancellor Kent. Speaking of the "Baltic conventional law of neutrality," he says, "it was soon abandoned as not being sanctioned by the existing Law of Nations, in every case in which the doctrines of that code did not rest upon positive contract. During the whole course of the wars growing out of the French Revolution, the government of the United States admitted the English rule to be valid, as the true and settled doctrine of international law; and that enemy's property was liable to seizure on board neutral ships, and to be confiscated as prize of have been the best work on the subject, on the side of Hübner, since the work of the latter writer. Schlegel was a judge in Denmark, and his work was professedly a discussion on the right of search, in examination of Sir Wm. Scott's judgment on the Danish convoy; but it besides considered all the most important questions of prize law. This treatise was written in Danish, and was translated into English, and I believe into German, but I have not been able to obtain a copy, after an extensive search among the booksellers; nor is there a copy of the work in the British Museum, nor in the libraries of the Inner Temple, nor of Doctors' Commons. On the treatises by Mr. Ward and Dr. Croke, in answer to Schlegel, war." Treaties before the 17th century. SECTION III. Of the Customary and Conventional Law of Nations on this question, till the time of the Armed Neutrality of 1780. We now come to the last division of this question, and have to inquire, whether the Customary or Conventional Law of Europe, has been such as to alter the law as derived from the two preceding sources. The first occasion in which, as far as I am aware, this topic is mentioned, is in a treaty between England and Spain, in 1351, which engages that Spanish goods, cap (1) Kent's Commentaries on American Law, I. 126–131. tured on board an enemy's ship, shall be restored to their owners. (1) A similar stipulation was made, in the treaty of 1353, between England and the deputies of the maritime towns of Portugal. (2) In 1370, it was declared between England and Flanders, that the subjects of Flanders should abstain from carrying the goods of the enemies of England: the Flemish government was to take security that there were no such goods on board, and to grant passports, on the exhibition of which Flemish ships were to pass in security; the Flemings were not to supply the enemies of England with any arms or provisions, and transgression was to be punished on the persons and goods of the offenders. (3) In 1373, Edward III. ordered restitution of a Portuguese ship to her owners, after all enemies' property had been taken out. (4) In 1406, in a treaty between Henry IV. of England and the Duke of Burgundy, it was declared, that "les marchans, maistres des niefs et maronniers dudit Paiis de Flandres, ou demourans en Flandres, ne amesront pour fraude ne couleur quelconque, aucune biens ou merchandises des ennemis des Englis par mer; et en cas qu'ils en soient demandez par aucuns escumers ou autres gens de la partie d'Engleterre, eulx en feront pleine et juste confession." (5) In 1417, a similar engagement was made on a truce between Henry V. and the Duke of Burgundy; but in (1) Rymer, Foedera, III. 1. 71. (2) Id. 88. (3) Id. 172. (4) Id. III. 11. 4. |