tions by special treaties forming the conventional law between the contracting parties.

During the interval between the peace of Nimiguen, 1678, and the war undertaken by Louis XIV, 1689, to replace James II. on the British throne, the efforts of the French government were directed to develope the maritime. resources of France; to encourage her commerce, navigation, and fisheries as the nurseries of seamen; to improve her arsenals, dock yards and schools of naval instruction. With the same view the ancient customs and regulations relating to maritime commerce were embodied in a uniform code by the Marine Ordinance of 1681. This ordinance also contains a complete colle tion of rules for the government of the commissioned cruizers and of the prize tribunals in cases of maritime captures in war. These were compiled from the ancient French ordinances, beginning with that of Charles VI, anno 1400, down to the more modern edicts of the French kings on the same subject, thus connecting the maritime institutions of the seventeenth century with the ancient laws and customs of the sea, compiled in the fourteenth by the authors of the Consolato del Mare. The still more ancient collection called the Roles d'Oleron or Jugemens d'Oleron has been satisfactorily shown by M. Pardessus not to have been exclusively of English origin, as supposed by Selden and other writers, but to have been compiled at various epochs, including the whole period when the maritime provinces of France, bordering on the English Channel and the Bay of Biscay were under the dominion of the kings of England of the Norman line. This collection also refers to captures at sea, as being from time immemorial within the admiral's jurisdiction, which appears to have been regulated in the same manner in both countries. The marine ordinance of 1681 embodied and gave a more complete sanction to the rules dinance and principles of prize law which had been gradually formed 1681. by ancient usages and judicial precedents.

When Louis XIV published this beautiful model of

Marine orof

Louis XIV,

§ 13. Theory of prize or

dinances.

legislation he intended to give laws, not to other nations who were independent of his authority, but to his own subjects, his admiralty judges, and his commissioned cruizers, who were responsible to him as their sovereign for what they did in war under colour of his authority, as he was responsible to foreign states whose subjects might be injured by their misconduct. The usage of nations, which constitutes the law of nations, had not then established, nor has it yet established an impartia! tribunal for determining the validity of maritime captures. Each belligerent state refers the jurisdiction over such cases to the courts of admiralty established under its own authority within its own territory, with a final resort to a supreme appellate tribunal under the direct controul of the executive government. The rule, by which the prize courts thus constituted are bound to proceed in adjudicating such cases, is not the municipal law of their own country, but the general law of nations, and the particular treaties, by which their own country is bound to other states. They may be left to gather the general law of nations from its ordinary sources in the authority of institutional writers, or they may be furnished with a positive rule by their own sovereign in the form of ordinances framed according to what their compilers understand to be the just principles of international law.

The theory of these ordinances is well explained by an eminent English civilian of our own times. "When" (says Sir William Grant,) "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 in

terpreting and administering it in the different countries which acknowledge its authority. Whatever may have been since attempted, it was not, at the period now 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 a uniform rule to their own courts, and partly for the purpose of apprising neutrals what that rule was."

The above observations were made by Sir W. Grant in pronouncing the judgment of the Lords of Appeal in Prize and Plantation causes in 1801, upon an incidental question arising in a case of insurance upon a vessel warranted Swedish property (Sweden being then neutral in the war between Great Britain and France,) and confiscated by a French tribunal in the Isle of France as enemy's property under the French ordinance of 1778, requiring certain specified proofs of the national character of the officers and crew of the vessel, and certain formal documents as to the proprietary interest in the cargo, for want of which, the vessel and cargo were condemned as prize of war. After stating the alleged ground of condemnation, and making the above observations, the learned judge proceeded to say that "it was truly observed, at the bar in the course of the argument, that it has been made matter of complaint against us, (how justly is another consideration,) that we have no code by which neutrals may learn how they may protect themselves against capture and condemnation. Now this court seems to me in this case to have well and properly understood the effect of their own ordinances. 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."d

a Marshall on Insurance, vol. i. p. 425.

The same view is taken by M. Portalis in delivering the Conclusions upon which the Council of Prizes at Paris reversed the sentence of condemnation pronounced by the Inferior prize tribunal in the case of the American ship Pigon, upon the ground of the role d'equipage required by several ancient and modern French ordinances not being found on board. After premising that all questions of neutrality are, what are termed questions of bona fides, he then proceeded to state that neutrality is to be proved, and hence the several regulations in the ordinances of France requiring the neutral character of vessels and their cargoes to be proved by certain enumerated documents among which is mentioned a rôle d'equipage in due form. "But it would be an error to suppose that the want of a single one of these papers, or the minutest irregularity in one of them, would be sufficient to pronounce condemnation. Formal papers frequently conceal an enemy interest which is disclosed by other circumstances. On other occasions, the character of neutrality breaks through omissions and irregularities of form arising from mere negligence, and founded upon motives foreign to any fraudulent intention. We must search for the truth, and in these matters as in all others which are regulated, not by unbending forms, but by the principles of good faith, we must say with the law, that mere omissions or mere irregularities of form cannot vitiate if the truth is otherwise apparent, et si aliquid ex solemnibus deficiat cum æquitas poscit, subviendum est."

So also in the case of the American ship Statira, the same learned person observes: "In general, the ordinances provided for regulating maritime captures, and which are improperly called laws, are essentially variable pro temporibus et causis, and may be tempered in their application by judicial discretion guided by views of wisdom and equity. I will add that in carrying into execution regulations of extreme severity, we ought rather to restrain than to extend them; and that in seeking for the different interpretations of which they are susceptible, we ought to pre

fer that which is the most favorable to justice and the freedom of commerce. The principle of law does not arise from the regulations, but the regulation ought rather to be derived from the principle. Consequently the particular laws and regulations ought always to be executed in the manner most conformable to the principles of universal reason; above all in those matters relating to the law of nations, where the legislator has ever contented himself with being the respectful interpreter of universal law."e

The marine ordinances of one state may then be considered, not merely as historical evidence of the practice of that state in warfare at sea, but of the cotemporary opinion of its statesmen and jurists as to what was the approved usage of nations at the period when these ordinances were issued.

The compilers of the marine ordinance of Louis XIV adopted the maxim of the Consolato del Mare, that the goods of an enemy on board the ship of a friend were liable to capture; whilst they rejected the rule that the goods of a friend on board an enemy's ship were exempt from confiscation. Reversing the latter maxim, they not only declared liable to confiscation as prize of war the goods of a friend found on board an enemy's ship, but involved in the same condemnation the ship of a friend carrying enemy's goods, thus limiting the lawful commerce of a neutral to his own goods carried in his own vessel.f

The extreme severity of these regulations makes it necessary to inquire more minutely into the history of the

* Conclusions de Portalis relatives à la prise du navire Américain le Statira devant le Conseil des Prises, 6 Thermidor, an. 8, p. 6

Tous navires qui se trouveront chargés d'effets appartenans à nos enemis, et les marchandises de nos sujets on alliés qui se trouveront dans un navire ennemi seront pareillement de bonne prise. (Ordonnance de la Marine, liv. 3, tit. 9, des Prises, art. 7.) The confiscation of enemy's ships had been provided for by the fourth article, and that of enemy's goods was left to be pronounced under the pre-existing law.