The Right of Capture.
The right of capturing enemies' goods on the high seas (which, as we have seen, is often improperly called the right of search) may be classed under three heads.
(1.) Where ship and cargo both belong to the enemy.
(2.) Where the ship belongs to the enemy and the cargo to a neutral.
(3.) Where the ship belongs to a neutral and the cargo to the enemy.
The first case has never yet given rise to any dispute, both ship and cargo being of course liable to confiscation although a theory, which we shall have to examine later on, has been lately started to exempt all private property at sea from capture.
The second case has never justified the seizure of the cargo as a recognized maxim of international law, although an abuse of belligerent rights has often, as we shall see, claimed this right, and in all those numerous treaties in the 17th and 18th centuries in which the principle of "free ships free goods" was stipulated, the opposite or converse principle "enemies' ships enemies' goods " was likewise agreed upon between the contracting parties, as a set-off against the concession.
The third case (where the ship belongs to a neutral and the cargo to the enemy) involves the principal matter on which we have to fix our attention. Previous to 1854 the English practice (leaving out of account for the present the modifications introduced into our practice by treaty engagements which will form the subject of a separate chapter) was founded on the simple theory that enemies' property was seizable wherever it was found: in Lord Stowell's words: "whatever the ships, whatever the cargoes, and whatever the destination," and that neutral property was under all circumstances to be restored, and the neutral subjected to as little loss and inconvenience as was consistent with the exercise of our rights over the enemy's property. For this purpose Admiralty Courts were established at our seaports, together with higher Courts of Appeal, for the decision of all cases in which neutral property was involved, and so delicate were we in dealing with neutral rights that the captain of the neutral vessel was entitled to the full amount of the freight which he would have earned by carrying the enemy's cargo to its port of destination had not the cargo been seized, and to demurrage too for illegal or unnecessary detention, amounting sometimes to the full amount of his freight.
No penalty was imposed on the neutral for carrying enemies' goods, except the discouragement inseparable from having those goods liable to confiscation, and the consequent contingent loss of future freight. This equitable rule was laid down as early as the 12th century in a remarkable compilation called the "Consolato del Mare," a code of maritime laws compiled, it is supposed, by order of St. Louis of France, from the customs of the sea actually in usage among all the maritime states of the world, including the Hanse towns, all the Mediterranean States, Genoa, Venice, Barcelona, Cyprus, Jerusalem, &c. This code therefore was not a new law dating from this period, but the mere codification of laws of immemorial antiquity in usage among the maritime states of the world. It was this, and not the authority of St. Louis, which gave it its high sanction, together with the fact that its equitable provisions met with the approval of all the great jurists who wrote on the subject of maritime law. Its provisions hence became essentially entitled to the name of laws of nations.
It seems to me a convenient place to pause here a moment to inquire what is a law of nations, especially as it is a question very germane to our inquiry, and has been surrounded with a good deal of unnecessary confusion.
Laws of nations are of two kinds, according to the source from which they are derived: (1) Jura naturæ. (2) Those founded on Universus consensus gentium.
The first we may translate the law of common sense, the natural law founded on reason.
The second, the general agreement between the nations of the world.
It is sometimes considered that the second source is sufficient to constitute a law of nations; but it is evident that such a law might conflict with a still higher law, such as that of self-preservation, the first law of nature and of nations, and then it must yield to this higher law. A law merely founded on convention, however general the agreement, is a law of nations in an inferior sense only. A fortiori when the agreement is only partial, the term "law of nations" is not applicable at all.
But when a law is both agreed upon by common consent, and is in accordance with the highest natural law, and is so regarded by the great authorities on International Law, then it becomes entitled to the full dignity of a law of nations in the largest acceptation of the term.
The maritime code of the Consolato del Mare constituted the maritime law of nations in this highest sense. Not only for centuries were the rules there laid down accepted, without dispute, by all maritime nations, large and small, but all the great international jurists, Grotius, Vattel, Bynkershöek, Zouch, Heineccius, Azuni, Lampredi, Puffendorf, and Kent, approved of these rules on the highest grounds of equity. I shall consider this point more at length hereafter.
When modifications began to be introduced into the practice consecrated by the rules of the Consolato del Mare, they were on the side of greater stringency and severity. England was the nation that departed least from the rules here laid down. Her general practice was for centuries in strict conformity with them, and, unless as exceptions introduced by Orders in Council, for a particular war, and as a particular exception, the rules of the Consolato were always recognized as the law of nations on the subject of maritime capture, and, as such, incorporated into the municipal law of England. France by means of her marine ordinances (having much the same force as our Orders in Council) overstepped, the provisions of the law of nations (and therefore the rules of the Consolato) far more systematically than we did; and, so far from its being true that the French practice was milder and more humane than our own, the exact contrary was the case, as I shall proceed to show.
By a decree of Francis I. (1563), confirmed by another in 1584, all neutral trade with the enemy was forbidden, the neutral vessel carrying enemies' cargoes was itself confiscated, and also the neutral cargo in an enemy's vessel.
The maritime ordinance of 1681 reaffirmed all these three extensions of what I may call normal belligerent rights as laid down in the Consolato del Mare.
By the marine ordinance of 1704 still further extensions were introduced in retaliation, be it said, of the Anglo-Dutch measures adopted by William of Orange against the power of Louis XIV. All articles of the produce and manufacture of the enemy's country on board a neutral were made seizable (although not entailing the confiscation of the neutral vessel itself as was the case with enemy's property).
The marine ordinance of 1744 modified the severity of these above mentioned rules, so that only enemies' property and produce were confiscated but not the neutral vessel.
And in 1773 a full return was made to the provisions of the Consolato del Mare.
Here I will close the account of the French practice, because from this date began the policy dictated by the events (1) of the American War of Independence, and (2) of the French revolution,—in which exceptional feelings of animosity and bitterness introduced exceptional regulations, and threw considerations of equity and of law into the background.
But before taking leave of the review of French practice between 1543 and 1744, there is a very interesting incident to be recorded, worthy of attention inasmuch as it exemplifies the fact that the idea of a law of nations, independent of and superior to municipal regulations in conflict with that law, had not up to that date deserted the public conscience in France. The incident is this.—
The ordinances of 1543 and 1584 enacted, as we have seen, the confiscation of the neutral vessel as well as the enemy's cargo. But the Parliament of Paris in 1592 adjudged the contrary (on the express grounds of international law) in the case of a Hamburg ship.
To sum up, we may divide the history of the law on the subject of marine captures into three epochs.
I. From the earliest times consecrated, not introduced, by the Consolato del Mare, up to the middle of the 16th century, when the equitable rules of the Consolato were never departed from.
II. From the middle of the 16th century to the American revolution, when the rules were frequently departed from for state reasons of policy, and as retaliatory measures, but with the tendency to return to the norma laid down in the Consolato del Mare.
III. From the period of the American revolution down to the Peace of Vienna, 1815, which I will consider in a future chapter.