manner in which they became incorporated into the prize code of France.

The more ancient ordinances of Francis I, 1543, and of Henry III, 1584, had adopted the maxim laid down by Mornac "que la robe d'ennemi confisque celui d'ami," (Ad. l. penult. § 1, ff. locati conducti,) and accordingly condemned the goods of a friend found on board an enemy's vessel. The contrary had been provided by the declaration of 1650; but the former rule was again revived by the Marine ordinance of Louis XIV, 1681; and continued to be the law of France until the revolution, except so far as it was occasionally suspended in its application to the flags of certain nations by special conventions.

Grotius, writing in 1625, states that "nothing is acquired by the law of war but what belongs to the enemy, and that the property of neutrals is not thus acquired, although it be found in the enemy's territory ;" and he infers from thence "that the maxim that goods found on board an enemy's ship are to be considered as belonging to the enemy," is not warranted by the law of nations, but that such are only presumed to be enemy's goods until the contrary is proved.s He goes on to state that it was so decided in 1438 in the supreme court of Holland, the duke of Burgundy being then at war with the Hanse towns, and that the decision had passed into a law.h

As to neutral vessels laden with enemy goods, they were first made liable to confiscation in France by the ordinance of Francis I, 1543, which was revived by the ordinance of

Liquet et hoc ut res aliqua nostra belli jure fiat requiri et hostium fuerit, nam quæ res apud hostes quidem sunt, puta in oppidis eorum aut intra præsidia, sed quorum domini nec hostium sint subditi, nec hostilis animi, eæ bello acquiri non possunt.*** Quare quod dici solet hostiles censeri res in hostium navibus repertas, non ita accepi debet quasi certa sit juris gentium lex, sed ut præsumptionem quandam indicet, quæ tamen validis in contrarium probationibus possit elidi. (Grotius, de J. B. ac P. lib. iii. cap. vi. §§ 5, 6.

De J. B. ac P. lib. iii. cap. vi. § 6.

Henry III, 1584. The last mentioned ordinance was avowedly issued for the purpose of putting an end to neutral frauds in concealing enemy interests. It seems to have been for a long time doubted whether this, regulation did ever, in fact, become the actual law of France; and Sir Leoline Jenkins, judge of the English court of admiralty in the reign of Charles II., having occasion to speak of this article in the case of a ship condemned in France, says of it in "There are several things of moment, as I con-ceive, that may be said to show, that that article ought not obtain in this case: first, that article has been complained of, and written against by public ministers and learned men, upon the first publishing it, as an encroachment and violation of the natural freedom of commerce. The direct contrary has been adjudged in the case of a free Hamburger, surprised with unfree goods on board it, by a solemn decision of the parliament of Paris, 1592. And this article was then declared in the sentence itself to be abrogated by disuse, the first publishing thereof being under Francis I, 1543, having never obtained in judicial determination for those forty-nine years, and the design of the first publishing it being only in terrorem. It has been moderated with several restrictions by the last and present most Christian kings in their several edicts, viz: Dec. 19, 1639, Jan. 16, 1645, Jan. 21, 1650; and by another ordinance, the 1st of Feb. of the same year, it is expressly provided that in prizes taken and to be taken by French commissions, the goods of enemies only shall be taken and made prize, but the other goods and ships that carry both, if they belong to friends shall be discharged."i

Grotius, commenting on this as the existing law of France in his time, holds that it only extends to the case of a neutral ship taking enemy's goods on board with the knowledge of the owner.j

i Life of Sir L. Jenkins, vol. ii. p. 720.

Sed neque amicorum naves in prædam veniunt ob res hostiles, nisi ex con

1678

Bynkershoek, whose work on the law of war was published in 1737, but with reference to examples taken from the maritime wars preceding the peace of Utrecht, states that such was the ancient law of France :-and he dissents from the opinion of Grotius that it did not extend further than to the case of a neutral ship the owner of which knowingly receives enemy's goods on board. Be this as it may, it is certain that this law was re-enacted on the revisal of the marine ordinances by Louis XIV in 1681; and continued to be observed, except as to the flags of certain nations specially exempted from its operation, until the issuing of the Réglement of Louis XV, anno 1744, which condemned the enemy's goods whilst it restored the neutral vessels on board of which they were captured. Valin states that this jurisprudence which prevailed in the French prize courts from 1681 to 1744, was peculiar to them and to the Spanish courts of Admiralty, the usage of other nations being to confiscate the goods of the enemy only.1 Valin also repudiates the above opinion of Grotius limiting the application of the ordinance to the case where the goods are shipped with the knowledge of the owner. "Grotius," says he "pretends that our ordinances are to be thus understood; but the 7th art. of the Ordinance of 1681, no more than the 5th of the Réglement of the 23d July, 1704, makes such a distinction, and it would, if admitted, furnish the master with an excuse with the aid of which he would never fail to elude the confiscation of both vessel and cargo.'

mיי

sensu id factum sit dominorum navis. Atque ita interpretandas puto leges Galliæ, quæ ex rebus naves, ex navibus res prædæ subjiciunt, quales sunt Francisci I. datæ anno clɔɔxLIII. cap. 42. Henrici III. anno clɔlɔLXXXIV mense martio, cap. 69. Alioqui res ipsæ solæ in prædam veniunt. (Grotius de J. B. ac P. lib. iii. cap. vi. § 6. in Notis.)

k Bynkershoek, Q. J. Pub. lib. i. cap. xiv.

1 Valin, Commentaire sur l'Ordonnance de la Marine, liv. 3, tit. 9, des Prises. art. 7, Traité des Prises, ch. 5, § 5, No. 7.

m Valin, Traité des Prises, ch. 5, § 5, No. 6.

Such was the state of European opinion and practice, independent of conventional law, upon these two questions during the period which elapsed between the peace of Pyrénées and that of Utrecht; France and Spain adhering to the more rigorous rule which the framers of the French ordinances had borrowed from the Roman fiscal law, whilst most other maritime states continued to adopt the maxims of the Consolato del Mare.

How far the law of nations in this respect was changed § 14. Convenduring the same period is the next question.

tional mari

time law of

Here it is proper to observe that whether the stipula- nations. tions in any particular treaty are to be considered as declaratory of the pre-existing law of nations, or merely as forming a special exception relaxing the primitive rigour of the consuetudinary law between the contracting parties, depends not merely upon the literal interpretation of the words of the treaty itself, but upon a view of all the extrinsic circumstances which may be supposed to have determined the assent of the parties. "Whether the stipulations of a treaty are to be considered as declaratory of the law of nations, or as an exception to it is a question," says Bynkershoek, speaking of another subject, "which it is often difficult to decide, and it is always dangerous to infer the law of nations without also consulting reason."n In another place, speaking of contraband of war, he says: "The law of nations on this subject is not to be drawn from any other source than reason and usage. Reason commands me to be equally friendly to two of my friends, who are enemies to each other; and hence it follows that I am not to prefer either in war. Usage is pointed out by the constant, and as it were, perpetual custom which sovereigns have follow

Sed recte observat Zouchens non satis constare, an quod illi pacti sunt, sit habendum pro jure publico, an pro exceptione, qua a jure publico diversi abeunt. In variis pactis, et antiquoribus et recentioribus, id adeo sæpe est incertum, ut ex solis pactis, non consulta ratione, de jure gentium pronunciare periculosum sit. (Bynkershoek, Q. T. Pub. lib. i. cap. xv.)

ed in making treaties and laws upon this subject; for they have often made such regulation by treaties to be carried into effect in case of war, and by laws enacted after the war begun. I have said by, as it were, a perpetual custom, because one or perhaps two treaties, which vary from the general usage, do not alter the law of nations."o

In speaking of this particular subject, he states "that the treaties respecting it have adopted the principle of the old French law, which confiscates the goods of neutrals mere ly because they are found on board the vessels of an enemy, and therefore do not agree with what Grotius states to have been decided by the Court of Holland, and to have obtained the force of a law. It is true that the treaties which I have cited are subsequent, and that they are of no force except between those who are parties to them. But the rule which they establish cannot be defended on rational principles: for why should I not be allowed to make use of my friend's ship to carry my property, notwithstanding his being at war with you? If treaties do not prohibit, I am at liberty, as I have already said, to trade with your enemy; and if so, I may likewise enter into any kind of contract with him, buy, sell, let, hire, etc. Therefore, if I have engaged his vessel and his labour, to carry my goods across the seas, I have done that which was lawful on every principle. You, as his enemy, may take and confiscate his ship, but by what law will you also take and confiscate the goods that belong to me who am your friend?

• Jus gentium commune in hanc rem non aliunde licet dicere, quam ex ratione et usu. Ratio jubet ut duobus, invicem hostibus, sed mihi amicis, æque amicus sim, et inde efficitur, ne in causa belli alterum alteri præferam. Usus intelligitur ex perpetua quodammodo paciscendi edicendique consuetudine: pactis enim Principes sæpe id egerunt in casum belli, sæpe etiam edictis contra quoscunque, flagrante jam bello. Dixi, ex perpetua quodammodo consuetudine, quia unum forte alterumve pactum, quod a consuetudine recedit, jus gentium non mutat. (Q. T. Pub. lib. i. cap. x.)

P But by the same treaties, as Bynkershoek subsequently shows, this is coupled with the correlative maxim of free ships free goods.