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çable to colonies so situated. It became necessary, therefore, in the act of 1819, to treat the colonies as actually independent of Spain; and to prohibit mutually, and with respect to both, the aid which had been hitherto prohibited with respect to one only. It was in order to give full and impartial effect to the provisions of the treaty with Spain, which prohibited the exportation of arms and ammunition to the colonies, but did not prohibit their exportation to Spain, that the act of Parliament declared that the prohibition should be mutual. When, however, from the tide of events flowing from the proceedings of the Congress of Verona, war became probable between France and Spain, it became necessary to review these relations. It was obvious that if war actually broke out, the British government must either extend to France the prohibition which already existed with respect to Spain, or remove from Spain the prohibition to which she was then subject, provided they meant to place the two countries on an equal footing. So far as the exportation of arms and ammunition was concerned, it was in the power of the crown to remove any inequality between the belligerent parties, simply by an order in council. Such an order was consequently issued, and the prohi. bition of exporting arms and ammunition to Spain was removed. By this measure the British government offered a guarantee of their bonâ fide neutrality. The mere appearance of neutrality might have been preserved by the extension of the prohibition to France, instead of the removal of the prohibition from Spain : but it would have been a prohibition of words only, and not at all in fact; for the immediate vicinity of the Belgic ports to France would have rendered the prohibition of direct exportation to France totally nugatory. The repeal of the act of 1819 would have, not the same, but a correspondent effect to that which would have been produced by an order in council prohibiting the exportation of arms and ammunition to France. It would be a repeal in words only as respects France, but in fact respecting Spain; and would occasion an inequality of operation in favor of Spain, inconsistent with an impartial neutrality. The example of the American government was referred to, as vindicating the justice and policy of preventing the subjects of a neutral country from enlisting in the service of any belligerent power, and of prohibiting the equipment in its ports of armaments in aid of such power. Such was the conduct of that government under the presidency of Washington, and the secretaryship of Jefferson ; and such was more recently the conduct of the American legislature in revising their neutrality statutes in 1818, when the Congress extended the provisions of the act of 1794 to the case of such unacknowledged States as the South American colonies of Spain, which had not been provided for in the original law.'
The unlawfulness of belligerent captures, made with- $ 18. Imin the territorial jurisdiction of a neutral State, is incon- munity of testably established on principle, usage, and authority. territory,.
how far it Does this immunity of the neutral territory from the extends to exercise of acts of hostility within its limits, extend to sels on the the vessels of the nation on the high seas, and without bigh sex the jurisdiction of any other State ?
We have already seen, that both the public and private vessels of every independent nation on the high seas, and without the territorial limits of any other State, are subject to the municipal jurisdiction of the State to which they belong2 This jurisdiction is exclusive, only so far as respects offences against the municipal laws of the State to which the vessel belongs. It excludes the exercise of the jurisdiction of every other State under its municipal laws, but it does not exclude the exercise of the jurisdiction of other nations, as to crimes under international law; such as piracy, and other offences, which all nations have an equal right to judge and to punish. Does it, then, exclude the exercise of the belligerent right of capturing enemy's property?
This right of capture is confessedly such a right as may be exercised within the territory of the belligerent State, within the enemy's territory, or in a place belonging to no one; in short, in any place except the territory of a neutral State. Is the vessel of a neutral nation on the high seas such a place ?
A distinction has been here taken between the public Distinction and the private vessels of a nation. In respect to its public and
the private vespublic vessels, it is universally admitted, that neither the sels.
| Annual Register, vol. lxi. p. 71. Canning's Speeches, vol. iv. p. 150; vol. v.
2 Vide ante, Pt. II. ch. 2, § 10, p. 158.
right of visitation and search, of capture, nor any other belligerent right, can be exercised on board such a vessel on the high seas. A public vessel, belonging to an independent sovereign, is exempt from every species of visitation and search, even within the territorial jurisdiction of another State ; à fortiori, must it be exempt from the exercise of belligerent rights on the ocean, which belongs exclusively to no one nation ?1
In respect to privale vessels, it has been said the case is different. They form no part of the neutral territory, and, wben within the territory of another State, are not exempt from the local jurisdiction. That portion of the ocean which is temporarily occupied by them forms no part of the neutral territory; nor does the vessel itself, which is a movable thing, the property of private individuals, form any part of the territory of that power to whose subjects it belongs. The jurisdiction which that power may lawfully exercise over the vessel on the high seas, is a jurisdiction over the persons and property of its citizens; it is not a territorial jurisdiction. Being upon the ocean, it is a place where no particular nation has jurisdiction; and where, consequently, all nations may equally exercise their international rights.
$ 19. Usage Whatever may be the true original abstract principle of nations octing of natural law on this subject, it is undeniable that the
constant usage and practice of belligerent nations, neutral ves- from the earliest times, have subjected enemy's goods in sels to capture. . neutral vessels to capture and condemnation, as prize of war. This constant and universal usage has only been interrupted by treaty stipulations, forming a temporary conventional law between the parties to such stipulations.3
i Vide ante, Pt. II. ch. 2, § 10, p. 158. . ? Rutherforth’s Inst. vol. ii. b. ii. ch. 9, § 19. Azuni, Diritto Maritimo, Pt. II. ch. 3, art. 2. Letter of American Envoys at Paris to M. de Talleyrand, January, 1798. Waite's American State Papers, vol. iv. p. 34.
3 Consolato del Mare, cap. 273. Wheaton's Hist. Law of Nations, pp. 65, 115-119, 200–206. Albericus Gentilis, Hisp. Advoc. lib. i. cap. 27. Grotius, de Jur. Bel. ac Pac. lib. iii. cap. 6, SS 6, 26; cap. 1, § 5, Note 6. Bynkershoek, Quæst. Jur. Pub. lib. i. cap. 14. Vattel, Droit des Gens, liv, iïi. ch. 7, § 115, Heineccius, de Nav. ob. vect. cap. 2, $ 9. Loccenius, de Jure Marit. lib. ii. cap. 4. $ 12. Azuni, Diritto Marit. Pt. II. ch. 3, art. 1, 2.
tral vessels laden with
The regulations and practice of certain maritime . $ 20. Neunations, at different periods, have not only considered tra the goods of an enemy, laden in the ships of a friend, enemy
' goods subliable to capture, but have doomed to confiscation the ject to con
fiscation by neutral vessel on board of which these goods were laden. the ordiThis practice has been sought to be justified, upon a some States. supposed analogy with that provision of the Roman law, which involved the vehicle of prohibited commodities in the confiscation pronounced against the prohibited goods themselves.
Thus, by the marine ordinance of Louis XIV., of 1681, all vessels laden with enemy's goods are declared lawful prize of war. The contrary rule had been adopted by the preceding prize ordinances of France, and was again revived by the règlement of 1744, by which it was declared, that "in case there should be found on board of neutral vessels, of whatever nation, goods or effects belonging to his Majesty's enemies, the goods or effects shall be good prize, and the vessel shall be restored.” Valin in his commentary upon the ordinance, admits that the more rigid rule, which continued to prevail in the French prize tribunals from 1681 to 1744, was peculiar to the jurisprudence of France and Spain; but that the usage of other nations was only to confiscate the goods of the enemy.?
Although by the general usage of nations, inde- $ 21.
, Goods of a pendently of treaty stipulations, the goods of an enemy, friend on found on board the ships of a friend, are liable to capture and condemnation, yet the converse rule, which enemy, subjects to confiscation the goods of a friend, on board confiscation
by the prize the vessels of an enemy, is manifestly contrary to rea- codes of son and justice. It may, indeed, afford, as Grotius has tions." stated, a presumption that the goods are enemy's property ; but it is such a presumption as will readily yield to contrary proof, and not of that class of presumptions which the civilians call presumptiones juris et de jure, and which are conclusive upon the party.
i Barbeyrac, Note to Grotius, lib. iii. cap. 6, $ 6, Note 1.
2 Valin, Comm. liv. üi. tit. 9. Des Prises, art. 7. Wheaton's Hist. Law of Nations, pp. 111-114.
· But however unreasonable and unjust this maxim may be, it has been incorporated into the prize codes of certain nations, and enforced by them at different periods. Thus, by the French ordinances of 1538, 1543, and 1584, the goods of a friend, laden on board the ships of an enemy, are declared good and lawful prize. The contrary was provided by the subšequent declaration of 1650; but by the marine ordinance of Louis XIV., of 1681, *the former rule was again established. Valin and Pothier are able to find no better argument in support of this rule, than that those who lade their goods on board an enemy's vessels thereby favor the commerce of the enemy,nànd by this act are considered in law as submitting themselves to abide the fate of the vessel; and Valin asks, “ How can it be that the goods of friends and allies, found in an enemy's ship, should not be liable to confiscation, whilst even those of subjects are liable to it?" To which Pothier himself furnishes the proper answer: that, in respect to goods, the property of the kings subjects, in lading them on board an enemy's vessels they, contravene the daw which interdicts to them all commercial intercourse with the enemy, and deserve to lose their goods for this violation of the law.1
The fallacy of the argument by which this rule is attempted to be supported, consists in assuming, what requires to be proved, that, by the act of lading his goods on board an enemy's vessel, the neutral submits himself to abide the fate of the vessel ; for it cannot be pretended that the goods are subjected to capture and confiscation ex re, since their character of neutral property exempts them from this liability. Nor can it be shown that they are thus liable ex delicto, unless be first proved that the act of lading them on board is an offence against the law of nations. It is therefore with reason that Bynkershoek concludes that this rule, where merely established by the prize ordinances of a belligerent power, cannot be defended on sound principles. Where, indeed, it is made by special compact the equivalent for the converse maxim, that free ships vrake free goods, this relaxa
1 Valin, Comm. liv. iii. tit. 9. Des Prises, art. 7. Pothier, Traité de Propriété, No. 96.