Due diligence. Exercise of neutral rights RIGHTS OF WAR AS TO NEUTRALS. "A neutral Power is bound to exercise such vigilance as the means at its disposal allow to prevent any violation of the provisions of the above Articles occurring in its ports or roadsteads, or in its waters" (t). We have already referred to the question of due diligence in connection with the third rule of the Treaty of Washington and with the national neutrality legislation. "The exercise by a neutral Power of the rights laid down in the not unfriendly present Convention can under no circumstances be considered as an unfriendly act by one or other belligerent who has accepted the Articles relating thereto " (tt). act. Communication of municipal provisions. NEUTRAL COMMERCE AND Neutral vessels on the high seas. "The contracting Powers shall communicate to each other in due course all statutes, orders, and other provisions regulating in their respective countries the position of belligerent warships in their ports and waters, by means of a communication addressed to the Government of the Netherlands, and forwarded immediately by that Government to the other contracting Powers" (u). Article 28 contains the usual proviso that the rules of the Convention apply only to the signatory parties, and then only if all the belligerents in a particular war are parties to the Convention. It must be admitted that this thirteenth Convention concerning the rights and obligations attaching to the status of neutrality in maritime war marks a distinctly progressive stage in the modern development of international law. Some of the most conspicuous defects we have already pointed out, e.g., in Articles 12, 19, 23. But the chief drawback is that, whilst the rights of neutral Powers are definitely affirmed, their obligations are not sufficiently decisive, inasmuch as the fulfilment of them rests too much on discretionary power. However, the Great War of 1914-1915 has shown that with but one exception all the neutral maritime Powers of the world-though not many were left neutral-sought to perform the obligations imposed on them by international law (x). Having considered the law of neutrality as between State and State, we have now to deal with the law of neutrality as between States and individuals. This brings us to the questions of neutral commerce in relation to belligerent rights, contraband, unneutral service, blockade, and visit and search. The unlawfulness of belligerent captures, made within the terri (t) Art. 25. (x) Cf. Phillipson, Int. Law and the Great War, passim, especially chapters xvi. seq. torial jurisdiction of a neutral State, is incontestably established on principle, usage, and convention. Does this immunity of the neutral territory from the exercise of acts of hostility within its limits, extend to the vessels of the nation on the high seas, and without the jurisdiction of any other State? It 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 belong (y). This jurisdiction is exclusive, only so far as respects offences against the municipal laws of the State to which the vessel belongs. 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? public and vessels. A distinction has been here made between the public and the Distinction private vessels of a nation. In respect to its public vessels, it is between universally admitted, that neither the right of visit and search, of private 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 visit 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 (z). In respect to private vessels, it has been said the case is different. They form no part of the neutral territory, and, when 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 moveable 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 juris(2) Vide ante, Pt. II. ch. 2, pp. 170 (y) Vide ante, Pt. II. ch. 2, pp. 163 seq. seq. Earlier usage of nations as to enemy's goods in neutral vessels. Enemy goods on neutral vessels. Goods of a friend on board the ships of an enemy. diction. 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 (a). Under the earlier usage and practice of belligerent nations, enemy goods in neutral vessels were subjected to capture and condemnation as prize of war (b). This constant and universal usage was only interrupted by treaty stipulations, forming a temporary conventional law between the parties thereto (c). The regulations and practice of certain maritime nations at different periods not only considered the goods of an enemy, laden in the ships of a friend, liable to capture, but doomed to confiscation the neutral vessel on board of which these goods were laden. This practice was sought to be justified upon a 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 (d). Thus, by the marine ordinance of Louis XIV., of 1681, all vessels laden with enemy's goods were 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 vesser 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 (e). Although by the general usage of nations, independently of treaty stipulations, the goods of an enemy, found on board the ships of a friend, were liable to capture and condemnation, yet (a) Rutherforth, Inst. vol. ii. b. ii. ch. 9, 19. Azuni, Diritto Maritimo, Pt. II. oh. 3, Art. 2. Letter of American Envoys at Paris to M. de Talleyrand, January, 1798. Waite, American State Papers, vol. iv. p. 34. (b) As to enemy goods under a neutral flag, see supra, p. 569. We have already referred to the Silesian Loan controversy (1752), where the Prussian argument, that the capture of enemy goods on neutral vessels was contrary to the law of nations, was easily disposed of by the British reply. (e) Consolato del Mare, cap. 273. Wheaton, 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, §§ 6, 26; cap. 1, § 5, Note 6. Bynkershoek, Quæst. Jur. Pub. lib. i. cap. 14. Vattel, Droit des Gens, liv. iii. 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, Arts. 1, 2. (d) Barbeyrac, Note to Grotius, lib. iii. cap. 6, § 6, Note 1. (e) Valin, Comm. liv. iii. tit. 9; Des Prises, Art. 7. Wheaton, Hist. Law of Nations, pp. 111-114. the converse rule, which subjected to confiscation the goods of a friend, on board the vessels of an enemy, is manifestly contrary to reason and justice. It may, indeed, afford, as Grotius has stated, a presumption that the goods are enemy 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. But however unreasonable and unjust this maxim may be, it was 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, were declared good and lawful prize. The contrary was provided by the subsequent 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 place their goods on board enemy vessels thereby favour the commerce of the enemy, and 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 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 if the king's subjects place their goods on board enemy vessels they contravene the law which interdicts to them all commercial intercourse with the enemy, and deserve to lose their property for this violation of the law (f). 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 placing his goods on board an enemy 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 it be first proved that the act of placing 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 make free goods,' this relaxation of belli (f) Valin, Comm. liv. iii. tit. 9; Des Prises, Art. 7. Pothier, Traité de Propriété, No. 96. The two maxims, of 'free ships free goods and enemy ships enemy goods,' not necessarily connected. gerent pretensions may be fairly coupled with a corresponding concession by the neutral, that 'enemy ships should make enemy goods. These two maxims have been, in fact, commonly thus coupled in the various treaties on the subject, with a view to simplify the judicial inquiries into the proprietary interest of the ship and cargo, by resolving them into the mere question of the national character of the ship. The two maxims are not, however, inseparable. The primitive law, independently of international compact, rests on the simple principle, that war gives a right to capture the goods of an enemy, but gives no right to capture the goods of a friend. The right to capture enemy property has no limit but of the place where the goods are found, which, if neutral, will protect them from capture. We have already seen that a neutral vessel on the high seas is not such a place. But neutral property should be exempt from capture, except where the conduct of the neutral gives to the belligerent a right to treat his property as enemy property, e.g., in case of contraband trading, breach of blockade, &c. The neutral flag should constitute no protection to enemy property, and the enemy flag should impart no hostile character to neutral property. States, however, have changed this simple and natural principle of the law of nations by mutual compact, according as they bolieved it to be for their interest; but the one maxim, that 'free ships make free goods,' does not necessarily imply the converse proposition, that enemy ships make enemy goods.' The stipulation, that neutral bottoms shall make neutral goods, is a concession. made by the belligerent to the neutral, and gives to the neutral flag a capacity not given to it by the primitive law of nations. On the other hand, the stipulation subjecting neutral property, found in the vessel of an enemy, to confiscation as prize of war, is a concession made by the neutral to the belligerent, and takes from the neutral a privilege he possessed under the pre-existing law of nations; but neither reason nor usage renders the two concessions so indissoluble, that the one cannot exist without the other. It was upon these grounds that the Supreme Court of the United States determined that the Treaty of 1795, between them and Spain, which stipulated that free ships should make free goods, did not necessarily imply the converse proposition, that enemy ships should make enemy goods, the treaty being silent as to the latter; and that, consequently, the goods of a Spanish subject, found on board the vessel of an enemy of the United States, were not liable to confiscation as prize of war. And although it was |