the Mediterranean Sea came to extend themselves amongst the merchants and mariners of the Western and Northern Seas. In the following century the Duchy of Burgundy A. D. 140614, the City of Genoa A.D. 146215, the Duchy of Brittany A. D. 146816, and the Duchy of Austria A.D. 1495", entered formally into the same system of prize law by treaties concluded with England; and the general practice of European Nations in the fifteenth century may be said to have been uniform in this matter, and so to have continued until the middle of the sixteenth century, when Francis I of France, avowedly with the object of checking neutral frauds, directed the Admiralty Règlement of France, by the Règlement of A. D. 1543, to condemn the goods of a friend found on board the ship of an enemy, and the ship of a friend, if it should be found laden with enemy's goods. § 78. The practice which France has pursued since the Règlement of 1543 has been subject to fluctuations. An Edict of Henry III (A. D. 1584) laid down the same rule for the French Prize Courts which had been promulgated by Francis I, proceeding upon the principle of hostile infection, as expressed by the maxim of "Robe d'ennemi confisque celle d'ami. This maxim had been justified by the celebrated French jurist Mornac, upon a suggested analogy with a provision of the Roman Civil Law18, according to which a vehicle carrying prohibited goods was liable to confiscation with the themselves. In 1650 the doctrine of hostile tion was so far relaxed, that whilst enemy's property of 1543. Edict of 1584. goods French infec- hostile in 18 Dominus navis si illicite aliquid in navi vel ipse, vel vectores imposuerint, navis quo. que fisco vindicatur. Dig. L. XXXIX. Tit. IV. c. 2. § 2. doctrine of fection. nance de la 1681. Spanish Ordenanza 1718. was to be confiscated, the goods of friends were to Ordon- be restored to them; but the famous Ordonnance Marine of de la Marine of Louis XIV. A. D. 168119, revived all the severity of the earlier Regulations of 1543 and 1584. Spain, under the sceptre of the House of Bourbon, followed in the wake of France, and by Article IX of her Ordenanza di Corso A. D. di Corso of 1718, adopted the provisions of the Ordinance of Louis XIV 20 It was not until A. D. 1744 that some relaxation in the severity of the Ordinance of Louis XIV was introduced by an Order in Council 21, directing that whilst enemy's goods should be confiscable on board of a neutral vessel, the vessel itself should be restored to its owners; but this order, says Valin 22, was only made from a reference to particular treaties, and in order to give effect to treaty-engagements with particular Powers. The doctrine of hostile infection was at last definitively set aside by the Règlement of 26 July 177823, under which, whilst neutral ships carrying contraband of war destined for the enemy were not to be confiscated unless three fourths of their cargo were contraband, privateers were forbidden to seize and detain neutral vessels, unless they were destined to a blockaded or besieged place 24. The Conseil des Prises in France has interpreted this Règlement to imply the principle of Free Ships, Free Goods; and although its operation was suspended for a French Règlement of 1778. 19 Lebeau, Code des Prises, Tom. III. p. 19. Tom. I. p. 80. 24 By the Ordinance of 1780 20 D'Abreu, Prises Maritimes, Spain declared that enemy's proc. 9. § 13. 21 Lebeau, Tom. I. p. 471. 23 Lebeau, Code des Prises, perty should be taken out of neutral ships, and the ships be allowed to go free, whilst freight was to be paid on the goods taken out of them. French short time by the Law of 29 Nivose of the year VI of the Republic 25, whereby a vessel was held to have a friendly or hostile character according as the cargo on board of it belonged to a friend or an enemy, it was once more revived by the Decree of 22 Frimaire, of the year VIII of the Republic 26, and it may be considered to have been the Law of the Law of the French Prize Courts down to the breaking out of the Prize war against Russia in 1854. An eminent English Courts. Judge (Sir William Grant) in delivering the judgment of the Lords of Appeal in Prize Causes in 1801, upon an incidental question arising in the case of a vessel warranted Swedish property (Sweden being then neutral in the war between Great Britain and France), which had been confiscated by a French tribunal in the Isle of France, as enemy's property, under the French Ordinance of 1778, observed, in reference to the various French Ordinances in matters of prize, that when Louis XIV published his famous Ordinance of 1681, "nobody thought that he was undertaking to legislate for Europe, merely because he collected together and reduced into the shape of an ordinance the principles of marine law, as then understood and received in France. I say, as understood in France; for although the Law of Nations ought to be the same in every country, yet as the tribunals which administer the Law are wholly independent of each other, it is impossible that some differences shall not take place in the manner of interpreting and administering it in different countries, which acknowledge its authority. Whatever may have been attempted, it was not at the period now 25 Lebeau, Code des Prises, Tom. III. p. 475. L'état des navires, en ce qui concerne leur charactère de neutre ou d'en nemi, sera déterminé par leur 26 Ibid. Tom. III. p. 615. States of referred to supposed, that one State could make or alter the Law of Nations; but it was judged convenient to establish certain principles of decision, partly for the purpose of giving an uniform rule to the Courts, and partly for the purpose of apprising Neutrals what that rule was." The same learned Judge, in commenting upon the administration of the law of Prize by the French Courts, under the direction of these Ordinances, observes "that they have not taken them as positive laws binding upon Neutrals, but they refer to them as establishing legitimate presumptions, from which they are warranted to draw the conclusion, which it is necessary for them to arrive at, before they are entitled to pronounce a sentence of condemnation 27." § 79. The Rule of the Consolato del Mare has been explicitly incorporated into the jurisprudence United of the United States, and declared by the Supreme America. Court to be a correct exposition of the Usage of Nations. "The rule," says Chief-Justice Marshall, "that the goods of an enemy, found in the vessel of a friend, are prize of war, and that the goods of a friend, found in the vessel of an enemy, are to be restored, is believed to be a part of the original Law of Nations, as generally, perhaps universally, acknowledged. This rule is founded on the simple and intelligible principle, that war gives a full right to capture the goods of an enemy, but gives no right to capture the goods of a friend. In the practical exposition of this principle, so as to form the rule, the propositions that the neutral flag constitutes no protection to enemy's property, and that the belligerent flag communicates no hostile character to neutral property, are necessarily admitted. The cha 27 Marshall on Insurance, Vol. I. p. 423 racter of the property, taken distinctly and separately from other considerations, depends in no degree upon the character of the vehicle in which it is carried 28." To the same effect Mr. Wheaton observes, "Whatever Wheaton. may be the true original abstract principle of National Law on this subject, it is undeniable that the constant usage and practice of belligerent Nations from the earliest times have subjected enemy's goods in 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 29" Chancellor Kent, in like man- Chancellor ner, affirms it to be "a well settled principle of the Kent. Law of Nations, that neutral ships do not afford protection to enemy's property, and it may be seized if found on board of a neutral vessel beyond the limit of the neutral jurisdiction 30." "It is also a principle of the Law of Nations relative to neutral rights, that the effects of neutrals found on board of enemy's vessels shall be free; and it is a right as fully and firmly settled as the other, though, like that, it is often changed by positive agreement. The principle is to be found in the Consolato del Mare, and the property of the Neutral is to be restored without any compensation for detention and the other inconveniences incident to the capture. The former Ordinances of France of 1543, 1584, and 1681, declared such goods to be lawful prize; and Valin 31 justifies the Ordinances on the ground that the Neutral, by putting his property on board of an 28 The Nereide, 9 Cranch's (American) Reports, p. 418. 29 Elements of International Law, Part IV. c. 3. § 19. 30 Commentaries on American Law, Tom. I. § 124. 31 Comm. sur l'Ordonnance de la Marine, L. III. Tit. IX, Des Prises, Art. VII. |