the war, so that if this neutral claim were allowable, war might be made interminable by the mere act and for the mere profit of States which are bound to take no part in it.

The fiction of a vessel being a part of the State to which she belongs has been sometimes raised here to bar the right of the belligerent to capture. To this scarcely serious argument it would be enough to reply that if a neutral ship be in all respects a part of a neutral State, and entitled to the same inviolability, yet at any rate it cannot be entitled to more respect or to greater privileges than the territory of which it is assumed to be a continuation. Nevertheless here we have much more claimed for it; for it actually carries the property liable to capture from one part of the world to another, which the State itself does not and cannot do. Belligerent property is doubtless safe in neutral territory, as well it may be, since it is dormant and far from the hand of the belligerent, and being in neutral territory brings no increase of power to him. Yet it is none the less under the general sentence of confiscation pronounced by the declaration of war, it is only that the execution of that sentence is stayed so long as the property is as it were asleep. But the instant it is brought into activity by passing the neutral frontier line, the sentence at once takes effect, and the property becomes immediately confiscable. The neutral State merely holds condemned property in

trust for the belligerent owner; but the neutral ship carries it to that owner. As long as it is in the neutral State it is necessarily dormant, and of no moment; but as soon as it begins to traverse the high seas in the neutral ship it becomes active and of great moment. The claim of the neutral that his territory shall protect from immediate capture condemned property which is separated from the belligerent is good; but it is a far different and greater thing to claim that the neutral ship shall carry that property to the belligerent, to be by him employed to recruit his strength for the war. If, therefore, it be that neutral ships are neutral territory, the question is not thereby concluded but still remains, for it cannot be contended that it is more than territory or entitled to more than territorial immunities.

But the fiction has never held so much water. The ship is liable, which the State is not, to be visited and searched, and to have captured in her, which the State is not, contraband of war, even of neutral ownership. All practice, therefore, as well as all reason, shows that neutral vessels sailing on the high seas are not a part of a neutral state standing on the firm land, in any sense which entitles them to do that which the firm land cannot do.

So much for the principle. Let us now see what has been laid down as the rule of international law by the great publicists. The oldest

authority on the Laws of Maritime War is the Consolato del Mare, a code which was of recognized authority so early as the end of the eleventh century, and which was received and adopted from the Baltic to Constantinople. The rule there laid down is this, "If an armed ship or cruiser meets "with a merchant vessel belonging to an enemy "and carrying a cargo the property of an enemy, common sense will sufficiently point out what is "to be done, it is therefore unnecessary to lay "down any rules for such a case."

"If the captured vessel is neutral property and "the cargo the property of enemies, the captor may compel the merchant vessel to carry the enemy's cargo to a place of safety, where the "prize may be secure from all danger of recapture; "paying to the vessel the whole freight which it "would have earned at her delivering port."

Grotius, that great and wise Dutchman, who has been called the Father of International Law, and who certainly was the first who reduced it to the form of a Science, wrote in the beginning of the 17th century. He adopted the Consolato del Mare, and transcribed the passage relating to this point; and although he does not argue the point out, for no pretensions contrary to the law of the Consolato had in his times seen raised, yet there can be no doubt how he would have decided upon * Consolato del Mare, cap. 273. Robinson's translation. † De Jure Belli ac Pacis. Book III. 1, 5, and note to § 3.

it, for he leaves it an open point whether a belligerent may not prohibit a neutral from carrying his own property to the belligerent, which is to go much further than the prohibition to carry the property of the belligerent. Albericus Gentilis, the Dutch Voetius,* the English Zouch,† the Swedish Loccenius, all equally accept the principle that enemy's property is enemy's property, wherever found on the high seas. Puffendorff§ refers to Grotius on the question, and like him admits that it may be allowable for a belligerent to prohibit not merely neutral carrying but all neutral trade with the other belligerents. Bynkershoek, a Dutch publicist who wrote at the beginning of the 18th century, and Heineccius, a Prussian, his contemporary, were the first who found such a notion raised as that neutral ships could protect enemy's, and they both contemptuously repudiate and denounce it.¶ Why do you doubt ?" asks the former of the two, and "Nobody doubts," replies the latter.

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Thus it appears that from the eleventh to the middle of the eighteenth century there was no

*De jure militari, cap. 5, n. 21.

+ De Jud. inter Gentes, p. 2, s. 8, n. 6. De Jure maritimo, 2, 4, 12.

§ Droit des Gens, L. VIII, c. 6, and note.

Barbeyrac, Law of Nature and of Nations, L. VIII, c. 6. ¶ Bynkershoek, Quest. Jur. Pub. cap. xiv. Heineccius, de Navibus ob vecturam vetilarum mercium commiss: cap. 2.

doubt or question as to this matter. Neither was such a claim as that of neutrals to carry enemy's property ever raised till 1752, when it was first advanced by the King of Prussia in a memorial to the Duke of Newcastle, whose answer* drawn up by four publicists, Lord Mansfield, Sir G. Lee, Dr. Paul, and Sir Dudley Ryder, is held by Montesquieut as an an "unanswerable reply," and by Vattel to have thoroughly established the position contended for. The King of Prussia accordingly at once abandoned his contention, and did not carry out the threat which had accompanied it. Vattel and Montesquieu, as we have seen, pronounced against him, and Vattel, facing the whole question, declares that "if we find an enemy's effects on board a neutral ship we seize them by the rights of war."§

Against this array of great names there are to be set on the other side, Hübner, a Dane, who had been employed by his own Government to endeavour to obtain an alteration in the law, and who wrote for that particular purpose, as an advocate would, and Schlegel his disciple, both of whom have been utterly overthrown both as rea

* The Duke of Newcastle's Letter to M. Michell, the King of Prussia's Secretary to the Embassy. London, 1753. † Lettre 45 à l'Abbé Guasco.

Droit des Gens, Book II, cap. VII, 84, p. 166, in Chitty's translation.

§ Droit des Gens, Book III, cap. vii, 115.