ocean, there is no doubt of our right to capture both the goods and the ship, because they are then in a place which is not the territory of any nation. But when the goods of an enemy are on board a neutral ship, and the ship is in the main ocean, though we have a right to take the goods, we have no right to take the ship, or to detain her any longer than is necessary to obtain possession of the goods-for the ocean itself is no terri tory—and neutral ships, as they are movable goods, can not be parts of the neutral territory; and consequently are no more under the protection of the neutral state, than the same goods would be, if they were passing through an unoccupied country in neutral carriages, or on neutral horses.

A neutral ship (says Rutherford in his institutes, whose reasoning on this question I adopt) may indeed be called a neutral place; but when we call it so, the word place does not mean territory, it only means the thing in which the goods are contained. Though the goods of the enemy had been on board a ship be longing to the enemy, we might have said, in the same sense, that they were in a neutral place, if they had been locked up there in a neutral chest. But no one would imagine, that such a neutral place, as a chest, can be considered as a part of the territory of the neutral state, or that it would protect the goods. Notwithstanding, a neutral chest is as much a neutral place as a neutral ship.

A ship, though a movable thing, is under the jurisdiction of a nation whilst it continues in one of its ports-but as soon as it is out at sea, only the private ownership, or inferior dominion, of the ship remains, and it ceases to be under the dominion or jurisdiction of the nation. The case will be the same, if, instead of supposing the ship to be the property of a merchant, we sup pose it to be the property of the nation.

For though we cannot well call the property which the nation has in such a ship by the name of private ownership; yet, when the ship comes into the main ocean, the jurisdiction or paramount property ceases, and the right that remains is an inferior kind of property, which has the nature of private ownership. If the jurisdiction, which a neutral state has over the ships of its mem

bers, or even over its own ships, ceases when the ships are out at sea; the goods of an enemy, that are on board such ships, cannot be under the protection of the nation, in the same manner as if the ships had been in one of its ports, or as if the goods had been on its land.*

Notwithstanding a neutral nation, when its ship is in the main ocean, has no jurisdiction over the ship itself, as if it was a part of its territory, yet the nation, or some of its members, which is the same thing, will continue to have the inferior sort of property, or ownership in it. This species of property will protect the ship from capture, though the enemy's goods on board her may lawfully be taken.

But here a difficulty occurs. This inferior kind of property, called private ownership, to distinguish it from the jurisdiction over things, is an exclusive right; those who have such ownership in things, whether private or public persons, have a right to exclude all others from making use of such things; and by this means, the rights of others are often hindered from taking

effect.

Wild beasts, birds, and fishes, are, till they are catched, in common to all mankind; and I, in common with others, have a right to take them, and thereby to make them my own. But I cannot hunt, or shoot, or fish, without perhaps sometimes using the soil or water of another man; and as I have no right to use these without his consent, he may justly hinder me from doing any of these acts, as far as his right of property extends. Thus by private ownership I am prevented from taking such things, as I should otherwise have a right to take, if they did not happen. to be in such places as he had an exclusive right to. In like manner, though I have a right to take the goods of my enemy, when they are out at sea, yet may not the effect of this right be prevented by the inferior property or ownership, which a neutral nation, or its members, have in the ship in which the goods are?

* [The jurisdiction here spoken of is relative to property, and altogether distinct from what is termed personal jurisdiction, which respects the relations between the society and its members. This latter species of jurisdiction is not confined to the territorial limits of a nation.]

If the law of nations is nothing but the law of nature applied to the collective persons of civil societies, instead of saying that the law of nations has decided otherwise, we should disclose a natural reason why it should determine otherwise. When I have merely a right to acquire property in a thing that is common to all mankind, but cannot do it without the use of what is already the property of some other man, this man neither does me an injury, nor encourages or protects others who have injured me, by excluding me from the use of what belongs to him. But when we have a right in war, upon account of the damage which the enemy has done us, to take goods of the enemy, and these are in a neutral ship; if the neutral state, though it has property in the ship, should make use of its right of property to protect the goods against us, this protection makes it an accessory to the injury, which is the foundation of the claim upon the enemy obtain reparation of damages, and consequently is inconsistent with the notion of neutrality.

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But whilst this answer removes one difficulty, it bring another. If a neutral nation makes itself accessory to the damages done by the enemy, by protecting such enemy's goods as she has a right to take for reparation of damages, when these goods are out at sea in one of its ships; why might not the same nation, without becoming in like manner an accessory, protect the same goods when the ship is in one of its ports, or when the goods are on land within its territory? A law of nations, which is natural as to the matter of it, and positive only as to the objects of it, will furnish an answer to this question.

Every state has, by universal acknowledgment and consent, by the law of nations, an exclusive jurisdiction over its own ter ritory. As long, therefore, as a state keeps within its own terri tory, and exercises its jurisdiction there, the protection in question is not a violation of our rights-but when its ships are in the main ocean; as they are then in a place out of its territory, where, by the law of nations, it has no jurisdiction, this law will allow us to take notice of the protection, which it gives to the goods of an enemy, and to consider it as an accessory to the damages done by the enemy, if it gives them protection.

In respect to the right of examination or search, if the end is lawful, and the examination or search a necessary mean to attain this end, the inference is inevitable, that the examination or search is likewise lawful.

If the question, whether enemy goods are seizable on board a neutral ship, were really doubtful; yet the right to search neutral ships must be admitted for another reason. All agree that arms, ammunition and other contraband articles, may not be carried to an enemy by a neutral power-without searching vessels at sea, such supply could not be prevented. The right to search, therefore, results, likewise, from the right to seize contraband goods. Again, the state of war authorizes the capture of enemy's ships and goods; but on the main ocean, which is the great highway where the ships and goods of all nations pass, how are the ships and goods of an enemy to be distinguished from those of a friend? No other way than by examination and search. Hence then the right of search is deducible from the general right to capture the ships and goods of an enemy.

It would undoubtedly disembarrass the commerce of neutral nations were passports and ships' papers received, in all cases, as conclusive evidence of the quality and property of the cargo. And did treaties, in fact, effectually secure an exemption from rude and detrimental inquisitions upon the ocean, they would become objects of inestimable worth to the neutral powers. But, notwithstanding the existence of stipulations in our other treaties [which aim at giving some force to similar credentials], can it be said, that our ships have been visited with less ceremony by one party than by the other? And may not the experience of other nations, as well as that of our own, be appealed to, in proof of the opinion, that these stipulations, however exact and positive, are too little regarded by that class of men, to restrain and govern whose conduct they are instituted?

The right of search ought to be used with moderation, and with as little inconvenience as possible to the rights of nations not engaged in the war. And the law of nations, on the other hand, requires the utmost good faith on the part of the neutral powers. They are bound not to conceal the property of the

enemy, but on the contrary, to disclose it when examination shall be made; in confidence of this impartiality, the law of nations obliges the powers at war to give credit to the certificates, bills of lading and other instruments of ownership, produced by the masters of neutral ships, unless any fraud appear in them, or there be good reason for suspecting their validity. The right of search is [always] at the peril of those who exercise it; the right, notwithstanding, [must be acknowledged] to be indubita ble.

The reasoning employed to prove that all neutral ships, on the main ocean, are liable to search, and enemy goods on board them to capture, is supported by the ablest writers on public law, and their decision is believed to be unanimously in its favor.

The Italian states were the first among modern nations, who cultivated the interests of commerce, and before the passage of the Cape of Good Hope, Venice and Genoa distributed the manufactures of Asia throughout Europe. They, therefore, first defined the rights of navigation. Their maritime regulations are collected in a work called "Consolato del Mare;" I do not pos sess the collection, but find the following quotation from it in Grotius.*

"If both the ship and freight belong to the enemy, then, without dispute, they become lawful prize to the captor; but if the ship belong to those that be at peace with us, and the cargo be the enemy's, they may be forced by the powers at war, to put into any of their ports, and unlade; but yet the master must be satisfied for the freight of them."

Grotius, that learned and persecuted friend of liberty, whose life and great talents were dedicated to the service of mankind, and who displayed so much ability and learning in defending the freedom of the seas and of commerce, is clearly of opinion, that enemy goods are not protected by neutral bottoms: he even goes farther, and allows that such property occasions great presumption that the vessel is, likewise, enemy property.† Bynker

*Grotius Book 3, chap. 1, sect 5, Note.

† Grotius. Book 3, chap. 1, sect, 8—Book 3, chap. 6, sect. 6.