TREATISE 
 
 ON 
 
 THE LAW OF WAR,
 
 A 
 TREATISE 
 
 ON 
 
 THE LAW OF WAR. 
 
 Translated from the original Latin of 
 
 CORNELIUS VAN BYNKERSHOEK. 
 
 BEING 
 
 THE FIRST BOOK 
 
 OF HIS 
 
 JURIS PUBLIC!. 
 
 WITH NOTES, 
 BY PETER STEPHEN DU PONCEAU, 
 
 Counsellor at Law in the Supreme Court of the United Stitcs 
 of America. 
 
 Ne fortior omnia possit. Ovi D. 
 
 PHILADELPHIA: 
 
 Published by Farrand & Nicholas; also, by Farrand, Mallory k Co., Bostor 
 
 P. H. Nicklin & Co., Baltimore; D. Farrand & Green, Albany; 
 
 Lyman, Mallory k Co., Portland; and Swift fee 
 
 Chipman, Middlebury, (Vt.) 
 
 Fry and Kammerer, Printers. 
 
 1810.
 
 ^ OS. .* 
 
 District of Penns}'lvania, to wit: 
 
 ****** BE IT REMEMBERED, That on the eighth day of 
 * Seal. * October, in the thirty fifth year of the Independence of 
 ****** the Unitetl States of America, A. D. 1810, Farrand and 
 Nicholas, of the said district, have deposited in this of- 
 fice the title of a book,' the right whereof they claim as proprietors 
 in the words following, to wit: 
 
 " A Treatise on the Law of War. Translated from the original 
 Latin of Cornelius Van Bynkershoek. Being the first book of 
 his Qusestiones Juris Public!. With Notes, by Peter Stephen 
 Du Ponceau, Counsellor at Law in the Supreme Court of the 
 
 United States of America. Ne fortior omnia possit. 
 
 Ovid " 
 
 In conformity to the act of the congress of the United States, 
 intituled, "An act for the encouragement of learning, by securing the 
 copies of maps, charts and books, to the authors and proprietors of 
 such copies, during the times therein mentioned." And also to the 
 act, entitled "An act supplementary to an act, entitled " An act for 
 the encouragement of learning, by securing the copies of maps, 
 charts, and books, to the authors and proprietors of such copies, 
 during the time therein mentioned," and extending the benefits 
 thereof to the arts of designing, engraving, and etching historical and 
 other prints." 
 
 D. CALDWELL, 
 Clerk of the District of Pennsylvania.
 
 JX 
 
 4510 
 
 TABLE OF CONTENTS. 
 
 Page 
 
 PREFACE .'.... f . . . . . v 
 
 An account of the life and writings of the author . . . xiii 
 
 A brief alphabetical notice of the several writers and works 
 on the civil law and the law of nations, not generally 
 known, and which are quoted or referred to in this book xxiii 
 
 A table of American and English cases, cited or referred to 
 in the notes xxxi 
 
 Table of reference, to enable the reader to find the pas- 
 sages quoted from the text of the civil law . . . xxxiii 
 
 CHAPTER I. 
 Of War in general 1 
 
 CHAPTER II. 
 Of a declaration of war . 6 
 
 CHAPTER III. 
 Of War, considered as between enemies 18 
 
 CHAPTER IV. 
 Of the capture of movable property, and particularly of ships 27 
 
 CHAPTER V. 
 Of the recapture of movable property 36 
 
 CHAPTER VI, 
 
 Of the possession of immovables taken in war .... 45 
 
 CHAPTER VII. 
 Of the confiscation of the enemy's actions and credits . . 51 
 
 CHAPTER VIII. 
 
 Of hostilities in a neutral port or territory ...... 58 
 
 CHAPTER IX. 
 Of Neutrality 66 
 
 CHAPTER X. 
 Of Contraband 74 
 
 CHAPTER XI. 
 
 Of Trade with blockaded and besieged places 82 
 
 fa 
 
 '""i. ' """ L * 
 
 POLITICAL SCIENCE
 
 iv TABLE OF CONTENTS. 
 
 Page 
 
 CHAPTER XII. 
 Of the mixture of lawful with contraband goods .... 93 
 
 CHAPTER XIII. 
 Of neutral goods found on board of the ships of enemies . 100 
 
 CHAPTER XIV. 
 Of enemy's goods found on board of neutral ships . . . 106 
 
 CHAPTER XV. 
 
 Of the right of Postliminy on neutral territory . . . . 113 
 
 CHAPTER XVI. 
 
 Of the right of Postliminy, as applied to cities and states 122 
 
 CHAPTER XVII. 
 Of Pirates 12? 
 
 CHAPTER XVIII. 
 Of Privateers 139 
 
 CHAPTER XIX. 
 Of the responsibility of owners of privateers 147 
 
 CHAPTER XX. 
 Of captures made by vessels not commissioned .... 155 
 
 CHAPTER XXI. 
 Of insuring enemy's property 163 
 
 CHAPTER XXII. 
 
 Of enlisting men in foreign countries, and incidentally, of 
 expatriation 174 
 
 CHAPTER XXIII. 
 
 Of the right of the several provinces of the United Nether- 
 lands, to declare and make war 181 
 
 CHAPTER XXIV. 
 Of Reprisals 182 
 
 CHAPTER XXV. 
 Miscellaneous maxims and observations 1 90 
 
 Table of titles contained in the index 201 
 
 Index 20?
 
 PREFACE. 
 
 1 HE following translation was made several years ago 
 for my own private use, and without any intention of 
 ever publishing it. But Mr. Hall, the editor of the Ame- 
 rican Law Journal, having expressed a wish to insert it 
 in that valuable periodical work, I freely consented to it, 
 having no other idea at the time but that it should appear 
 there as an anonymous performance. The manuscript 
 was accordingly handed over to the printers of the Jour- 
 nal, and the first ten chapters were printed off, without 
 undergoing any other corrections but such as occurred 
 in revising the proof sheets, to which I subjoined a few 
 short notes as I went along. 
 
 But while I was engaged in that occupation, I felt my 
 ancient attachment to a favourite author revive; the sub- 
 ject grew upon me; I gave an attentive revisal to the re- 
 mainder of the manuscript, and added to it a more copi- 
 ous body of notes; and I now, with diffidence, venture 
 to present the result of my labours in my name to my 
 brethren of the American bar. It is, according to its first 
 destination, published in and for the American Law 
 Journal, and will be delivered to its subscribers as the 
 third number of the third volume of that publication; 
 but a sufficient number of copies will also be struck
 
 vi PREFACE. 
 
 off for such as may wish to possess it as a separate 
 work. 
 
 I need not explain to those who are conversant with 
 the works of my author, that his Qutestiones Juris Publici 
 are divided into two parts, entirely distinct from and 
 unconnected with each other, otherwise than by being 
 published together under one title, and by their general 
 relation to subjects of public law. The first part, De Re- 
 bus Bellicis, treats exclusively of the law of war, and 
 forms of itself a complete treatise on that particular sub- 
 ject. I have thought it best, therefore, to translate and 
 publish it separately, under its appropriate title, A Trea- 
 tise on the Law of War. 
 
 To expatiate on the merits of this excellent work 
 would be useless. It is known and admired wherever 
 the law of nations is acknowledged to have a binding 
 force. Its authority is confessed in the cabinets of princes, 
 as well as in the halls of courts of justice: to be unac- 
 quainted with it, is a disgrace to the lawyer and to the 
 statesman. It ranks its author among the great masters 
 of the law of nature and nations, with Grotius, Puffen- 
 dorffl Wolffius, and Mattel. His range is not indeed so 
 extensive as that of his illustrious colleagues; but he has 
 more profoundly investigated and more copiously dis- 
 cussed than any of them the particular branch which he 
 assigned to himself. 
 
 It is extraordinary that a treatise, the merit of which 
 is so generally acknowledged, has not as yet been trans- 
 lated into any of die modern languages (the Low Dutch 
 excepted), and that the English, particularly, who pro- 
 fess to admire it so much, have not favoured the world 
 with a good translation of it into our common idiom. 
 For we cannot consider as such the incorrect and in- 
 complete version which in the year 1759 was, by the help
 
 PREFACE. vii 
 
 of some interpolations, published by Mr. Richard Lee? 
 as an original work, under the title of A Treatise of 
 Captures in War, a second edition whereof appeared 
 at London in 1803, in the preface to which the book is 
 for the first time acknowledged to be an enlarged trans- 
 lation of the present work. The insufficiency of that per- 
 formance to supply the place of our author's text is every 
 where admitted; and the friends of science in this country 
 have long expected that some of the learned civilians of 
 Great Britain, a Robinson, a Ward, or a Brown, would 
 present the world with an English translation of the trea- 
 tise De Rebus Bellicis, executed in a manner worthy of its 
 author. But this fond hope has unfortunately been disap- 
 pointed. 
 
 No person has wished more anxiously than myself to 
 see this translation performed by some one of the able 
 professors whom I have just named, and who are so ca- 
 pable of doing it complete justice. Then my favourite 
 author would have appeared in an English dress, with 
 all the advantages which brilliant talents, combined 
 with a profound knowledge of the science of which he 
 treats, could have given him. The translation which I 
 offer to the public cannot boast such high advantages; 
 it claims no other merit but that of correctness, the 
 only one which a translator cannot dispense with. To 
 deserve this humble praise has been the object of mv 
 constant efforts. I have endeavoured to discover the 
 precise English expressions which my author would 
 have used, if he had written in our language. If some- 
 times I have shortened his long Ciceronian periods, 
 and divided them into more convenient paragraphs; if 
 sometimes, also, I have connected his phrases in a man- 
 ner more suited, as I thought, to the idiom in which I 
 wrote, I believe that I have done it without injury to the
 
 viii PREFACE. 
 
 sense. Where my author narrates, I have endeavoured 
 to state with fidelity the facts and events that he relates; 
 where he argues, to convey the full force of his able and 
 luminous reasoning, and I was sensible that it could not 
 be done better, than by keeping as close to the text as 
 possible. I have but in few instances wandered from this 
 strict plan, and only where our author treats of local sub- 
 jects, of little or no interest to the American reader. Of 
 the few other liberties, which I have thought necessary 
 to take in the course of this work, it is proper that I 
 should give an account in this place. 
 
 I have shortened the titles of the several chapters, 
 which in the original are presented in the shape of que- 
 ries, to suit the modest title of Questions, which is pre- 
 fixed to the whole work. Considering this first part, 
 as justly entitled to be considered a complete and regular 
 treatise on the law of war, 1 have thought it my duty to 
 present it as such to my readers, and to head its several 
 divisions accordingly. 
 
 For the same reason, I have entitled the twenty fifth 
 chapter, which in the original bears the title of " Various 
 Small Questions," (Varia; Qutfstiuncul(s}\ MISCELLA- 
 NEOUS MAXIMS AND OBSERVATIONS, for such they 
 will appear to be; and I have headed each of the sections 
 into which that chapter is divided, with the result of the 
 observations that it contains, in the form of an axiom or 
 aphorism, so that the reader may see at once the pro- 
 position which the author means to maintain or to illus- 
 trate in each of those subdivisions. 
 
 I have omitted the whole of the twenty third chapter 
 and some parts of a few others, which are pointed out in 
 notes in their several places, as treating of subjects which 
 are local in their nature and application, and consequent- 
 ly, are neither useful nor interesting to us. I have, for the-
 
 PREFACE. ix 
 
 same reason, left out a great number of the references, 
 which our author frequently makes to the Dutch statute 
 books, and to some other national works, little or not at 
 all known in this country. I have, however, preserved a 
 few to some of the most noted among them, and par- 
 ticularly to Aitzema, whose Chronicle I consider as an 
 excellent compilation of historical facts and documents, 
 of which I have endeavoured to give a character in a note 
 to page 15. 
 
 I have thrown into notes, in the fifteen last chapters, 
 the numerous references which abound in the body of 
 the original work. The first ten chapters being in the 
 press, as I have already mentioned, when I began to re- 
 vise this translation, I was prevented from doing the 
 same with respect to them by the fear of giving to the 
 printers too much additional trouble. 
 
 With regard to the notes which I have subjoined to 
 the body of the work, and which, to distinguish them 
 from those of the author, are marked 71, they are 
 principally intended to elucidate and explain the text. 
 Our author often slightly refers to facts which were well 
 known, and some of them even remembered in his dav; 
 frequently, also, he alludes to particular texts of the 
 civil law, and to the opinions of writers whose works 
 were familiar to the civilians of Europe and of his coun- 
 try, but are little read among us. In every such instance, 
 whenever it has been in my power, I have presented the 
 reader, in a note, with the text or passage referred to; and 
 where that could not conveniently be done, I have given 
 such explanations as I thought would best enable him 
 clearly to understand the scope and meaning of the ob- 
 servations or arguments of our author. 
 
 As I progressed in the work, I have added some 
 other notes, which exhibit a comparative view of the
 
 x PREFACE. 
 
 principles and practice of the different states of America 
 and Europe on various interesting points. In a few in- 
 stances I have presumed to advance my own opinions, 
 and even in some of them to differ from my author him- 
 self; but I have done it, I am sure, in the spirit, and, I 
 hope, in the manner pointed out by the great orator, 
 queer ens omnia, dubitans plerumque, et mihi diffidens.* 
 
 I have thought that an account of the life and writings 
 of Bynkershoek would not be unacceptable to the reader, 
 and therefore it will be found immediately after this 
 preface. I have added to it a brief alphabetical notice of 
 those writers on the civil law or the law of nations, whose 
 works are not generally known, and are quoted or refer- 
 red to in this book. A list of the American and English 
 cases cited in the notes, and a table of reference to the 
 books and titles of the quotations from the text of the 
 civil law, which occur in the course of the original work, 
 are also subjoined. I regret that some errors of inadver- 
 tence have escaped my attention, particularly in the notes, 
 which I acknowledge, were written with some degree of 
 haste, though they are the result of much previous study 
 and reflection. Such of those errors as I have discovered 
 are noticed in an errata, at the end of the book.f 
 
 Being about to commit this work to the candour and 
 indulgence of the public, I have thought it necessary to 
 premise these few observations. It has long been, as I 
 have already observed, an anxious wish of the American 
 jurists to see this celebrated treatise correctly translated 
 into our language, and published in a portable form. It 
 is very difficult to procure in this country a copy of the 
 
 * Cic. acad. quaest. 1. 
 
 t To which add the following, which was not noticed at the 
 time: page 155, line 1, of the text, dele "whether."
 
 PREFACE. xi 
 
 original, which is. only to be found in a few of our libra- 
 ries. Nor can it be obtained from Europe, without pur- 
 chasing at the same time two folio volumes, which con- 
 tain a great deal of matter of little interest to those who 
 do not make the civil law the object of their particular 
 study. With the greatest diffidence, therefore, I submit 
 this feeble attempt to the candid and enlightened judg- 
 ment of my professional brethren; if it shall be thought 
 deserving of their approbation, I shall consider it as an 
 ample and honourable reward of my labours, otherwise 
 I shall endeavour to profit by their censure. 
 
 At the present moment, when the fate of Holland cre- 
 ates a lively interest in every feeling mind, the public 
 will be disposed to receive with peculiar indulgence, a 
 work which recals to our memory the brilliant epochs of 
 that celebrated republic, once so famed in arts as well as 
 in arms. She has proved to the world, that the republi- 
 can spirit of commerce, and the honourable pursuits of 
 industrious enterprise are not incompatible with any of 
 those more brilliant attainments by which nations as well 
 as individuals are raised to celebrity. Since her separa- 
 tion from the Spanish empire she has produced more 
 great men, and achieved more great deeds, than all the 
 remainder of that once immense and powerful monarchy. 
 
 Holland is no more, but the remembrance of her past 
 glory can never die. The admirers of military exploits 
 will with pleasure and pride dwell on the achievements of 
 her Maurice, her De Ruyters, and her Van Tromps. 
 The statesman will still guide his political bark by the 
 lights which her De Witts, her Van Beuningens, and her 
 Fagels have supplied. The astronomer, the philosopher, 
 will explore the secrets of nature and the heavens, with 
 her ''sGravesandcs and her Huygens. The physician will 
 improve his theory and his practice by the discoveries 
 
 fb
 
 x ii PREFACE. 
 
 of her Boerhaaves and her Van Swietens. And the stu- 
 dent, who delights in investigating the principles of 
 that law of nations, so much talked of and so little 
 practised, will ever revere the hallowed soil which 
 gave birth to such illustrious men as Grotius and our 
 BYNKERSHOEK. 
 
 His saltern accumulem donis & fungar inani 
 Munere. 
 
 Philadelphia, October, 1810.
 
 AN ACCOUNT 
 
 OF THE 
 
 LIFE AND WRITINGS 
 
 THE AUTHOR. 
 
 CORNELIUS VAN BYNKERSHOEK was bom the 
 
 29th of May 1673, at Middleburgh, the capital of the province 
 of Zealand, where his father was a respectable merchant. He 
 received his education at the university of Franeker in Fries* 
 land, and his juvenile exercises while there, drew upon him 
 the attention of the celebrated professor Huberus,* who in one 
 of his elaborate dissertations, calls him eruditissimus juvenis 
 CORNELIUS BYNKERSHOEK.J On leaving the university, he 
 settled at the Hague, where he exercised with great applause 
 the profession of an advocate, and published from time to time 
 ingenious and learned dissertations on various subjects of the 
 civil, and of his own municipal law. In the year 1702, he pub- 
 lished his excellent dissertation De Dominio Mans, and the 
 next year was appointed a judge of the Supreme Court of 
 Holland, Zealand, and West Friesland, which sat at the Hague. 
 In the year 1721, he published his learned treatise Deforo Le- 
 gatorum, and three years afterwards, on the 26th of May 1724, 
 was appointed president of the respectable court, of which he 
 already was a member. He was now fifty one years of age. His 
 
 * Well known in this country, by his dissertation De Confictu Legum, 
 part of which has been translated into English, and published by Mr. Dallas, 
 in a note to the case of Emory v. Greenough, in the third volume of his Re- 
 ports, page 370. 
 
 f Huber. Ettnomia Pomona, ad 1. Lecta, D. de reb. creci
 
 xiv ACCOUNT OF THE AUTHOR. 
 
 celebrated ^{cesticnes juris pubtici, are among the last works 
 that he produced, as they did not appear until the year 1737, 
 when he was sixty four years old. He died of a dropsy in the 
 chest, on the 16th of April 1743, in the seventieth year of his 
 age. He was twice married. By his second wife he had no chil- 
 dren, but left six daughters by his first wife. 
 
 His works consist chiefly of dissertations andtreatises (which 
 he modestly calls questions^ on various subjects of the law of 
 nations, and of the civil law, combined in some instances with 
 the municipal regulations of his own country. They were pub- 
 lished separately, in his lifetime, except the Qiicestiones juris 
 privati, which appeared only after his death. These are only a 
 part of a larger work, which he did not live to finish. He had 
 however prepared the four first books for the press, when death 
 put a period to his labours. He had not even time to write more 
 than the first paragraph of a preface, with which he intended 
 to usher that work into the world, and in which he appears fully 
 sensible of his approaching end. 
 
 Eighteen years after his death, his scattered writings were 
 collected together by the learned Vicat,* professor of juris- 
 prudence in the college of Lausanne in Switzerland, and pub- 
 lishtd in two folio volumes at Geneva, in the year 1761. This 
 edition is the only one, that we know of, of all the works of 
 our author, though we are informed that some of his treatises 
 have gone through several editions in his own country. The 
 Baron Von Ompteda\ notices a second edition of the ^ticestiones 
 juris pJtblicii'L.eydcn 1752, 4to. But this, the best and most com- 
 plete monument of his fame, was published in a foreign land. 
 
 This edition is remarkable for its beauty and correctness, 
 and is adorned with an elegant preface by the learned editor, 
 and an account of the author's life and writings, from which 
 we have in part gathered the information which we now com- 
 municate to the American reader. 
 
 * M. Vicat is the author of an esteemed treatise on natural hi\v, entitled: 
 Traite du Drnit N.:tnrel 15* tie f application de ses principts au Droit Civil fcT 
 nu Dr<,it dts Gens. Lausanne, 1T82, 4 voJs 8vn. Baron Von Ompteda calls V- 
 a very urefut bunk. LUu-r dc-s Vcclkcrr. p. 389. 
 
 t Litter atur drs Vcclkerrechts. p. 420.
 
 ACCOUNT OF THE AUTHOR. X v 
 
 We shall here give a brief notice of the several works of 
 our author, which are contained in the collection of professor 
 Vicat, although but few of them can be of any practical use in 
 this country, yet we believe that a general idea of the whole will 
 not be thought altogether uninteresting. 
 
 I. The first volume contains: 
 
 1. Observations juris Romani^ in eight books, in which a 
 variety of curious points, relating to the ancient Roman juris- 
 prudence, are ably discussed, several of which are interesting in 
 an historical point of view, as elucidating through the medium 
 of their laws, the manners and customsof that once great people. 
 Among those, we notice the first chapter of the first book, in 
 which the terrible partis secanto of the law of the twelve tables 
 is ingeniously and plausibly maintained to have meant no more 
 than that the insolvent debtor should be sold in the public mar- 
 ket as a slave, and the proceeds of the sale distributed among 
 his creditors. The 14th chapter of the third book discusses 
 the question, how far and in what cases the military force 
 could among the Romans be called in to the aid of the judicial 
 authority. In the 4th book, chap. 13, the author comments on 
 the 19th law of the digest De ritu nuptiarum y by which a fa- 
 ther was obliged to give his daughter in marriage with a com- 
 petent portion, if a suitable match offered; and if he refused, 
 might be compelled to it by the magistrate. Various other sub- 
 jects of an equally interesting nature to the scientific lawyer, 
 are examined and discussed in the course of that work; of which 
 we think it sufficient to have instanced a few, to give an idea 
 of the general scope and object of the whole. 
 
 2. Opuscula varii argumenti. This work like the former, 
 consists of dissertations on various subjects of the Roman law. 
 They are six in number, the most interesting of which are the 
 first, on the second law of the digest De origine juris, the third 
 on the right which fathers had among the ancient Romans, 
 of killing, selling, or exposing their children, and the fourth 
 on the Roman laws, respecting foreign modes of worship. 
 This last is replete with curious information, particularly with 
 regard to the law which prevailed on that important subject, 
 in the first ages of Christianity. 
 
 3. This volume concludes with an answer to his learned
 
 xvi ACCOUNT OF THE AUTHOR. 
 
 cotemporary Gerard Noodt, who had controverted some of the 
 opinions which he had delivered in his above mentioned dis- 
 sertation, on the power which fathers had at Rome over their 
 children. 
 
 II. The contents of the second volume are as follow: 
 
 1. Opera Minora, consisting of six dissertations on various 
 subjects, none of which will be thought very interesting in 
 this country, except the 5th, De Dominio Marts, and the 6th, 
 De foro legatorum. These, indeed, had he never written any 
 thing else, would have been sufficient to establish our author's 
 reputation as a lawyer, and a publicist. Every one who has read 
 and understood, and of course admired them, cannot help find- 
 ing fault with the excessive modesty which induced him to 
 publish them under the inappropriate title of opera minora. The 
 learned world has long classed them among the best works 
 that have ever appeared on those generally interesting subjects. 
 
 In the dissertation De Dominio Marls, our author considers 
 the long agitated question of the Dominion of the Sea, in a libe- 
 ral and impartial manner, unbiassed by prejudice, and unsway- 
 ed by party spirit. He calmly and dispassionately considers in 
 what cases the sea is capable of becoming the subject of sove- 
 reignty or exclusive jurisdiction, discusses with candor the 
 various pretensions which different states have set up from 
 time to time to the dominion of that element, or of considera- 
 ble portions thereof; and upon the whole, his conclusions are 
 such as reason avows, and moderate men will ever be disposed 
 to adopt. 
 
 His dissertation, or rather treatise Deforo Legatorum is in 
 every body's hands, in the excellent translation which Mr. 
 Barbeyrac made of it into the French language, with notes, 
 in which he has displayed his usual judgment and learning. 
 That translation has not only received the approbation, but the 
 praise of our author himself, with whom Mr. Barbeyrac was 
 intimate. We shall therefore dispense with giving a more par- 
 ticular account of a work which is so well and so generally 
 known. To name it is sufficient praise. 
 
 2. ^riastiones juris publici. This work is divided into two 
 parts; the first of which, entitled De Rebus Bellicis is now pre- 
 sented in an English translation to the American public, under
 
 ACCOUNT OF THE AUTHOR. xvii 
 
 its appropriate title of " A Treatise on the Law of War;" and 
 a more complete one never yet has been written on this inte- 
 resting subject. The second part which is entitled De rebus va- 
 rn argument!, treats of various subjects, some of them belong- 
 ing to the law of nations, and others to the constitution and 
 laws of the United Netherlands. From the 3d to the 12th 
 chapter inclusive, our author treats of the law of ambassadors, 
 and those chapters might well be added to the treatise Deforo 
 Legatorum, with the subject of which they are more nearly 
 connected than with any other. In the seventh chapter he ex- 
 amines the question, whether the acts of a minister are binding 
 when contrary to his secret instructions. The 21st chapter treats 
 of the salute to ships of war at sea, and seems to belong more 
 properly to the dissertation De Dominio Maris, where the same 
 subject is treated of. The remainder of the chapters, twenty- 
 five in number, do not treat of any subject of general concern, 
 and the whole of this second book is unconnected with the 
 first, which is best exhibited as a separate and independent 
 treatise on the Law of War. 
 
 The ^iicestiones juris publici have been translated into the 
 Low Dutch language by Matthias Ruuscher, in the year 1739. 
 We do not know of any other translation of them into any 
 language whatever, except that of the first book by Mr. Lee 
 into English, of which we have made mention in the preface. 
 
 3. ^ucestiones juris privati. This work, which was to have 
 contained one hundred chapters, and contains only forty-eight, 
 was left incomplete, as we have already mentioned, by the 
 death of the learned author. It is divided into four books, chiefly 
 on topics of the civil law and the municipal law of Holland. The 
 fourth book alone, and the last chapter of the third, may be 
 considered as interesting to the American jurist, as they treat 
 of the subject of insurance, and of various points of the mari- 
 time and commercial law. This work closes the second and 
 last volume. 
 
 Our author also wrote two other considerable works, the 
 one entitled Corpus juris Hollandice& Zelandice, and the other 
 Observations Tumultuaricc or hasty notes, being memoranda 
 which he took from day to day, of the decisions of the court 
 in which he sat for the space of forty years. He gave directions
 
 xviii ACCOUNT OF THE AUTHOR. 
 
 by his will, to his executors, that those works should not be 
 published; and they strictly complied with his injunction. 
 As the ancient laws of Holland have been subverted, and the 
 Napoleon code introduced in their place, it is probable that 
 those writings, if published, would not be found of any great 
 use at the present time. 
 
 The character of our author's works has long been esta- 
 blished among the learned of Europe. Heineccius, who, in the 
 year 1 723, published at Leipsick, an edition of the four first 
 books of the Observationes Juris Romani, calls him in his pre- 
 face to that work, " a man of consummate learning and ability, 
 possessing a sound discriminating mind, and an extraordinary 
 and incredible fund of legal knowledge."* Barbeyrac, in the 
 preface to his translation of the treatise De foro Legatorum, 
 describes him as one of that superior class of writers, whose 
 works are only intended for men of learning, and who, disdain- 
 ing to retail the opinions of others, are unwilling to say any thing 
 which has been observed before, and endeavour, as much as 
 they can, to exhibit their subject in some new point of view. 
 "And he is right;" continues he, " to have taken that ground. 
 One who possesses, within himself, such a rich fund of know- 
 ledge, may well leave it to others to borrow and repeat what 
 has already been said."f 
 
 In England, the great Lord Mansfield thought him worthy 
 of his high commendation from the bench, and recommended 
 the work which we have translated, to the attention of the mem- 
 bers of the English bar.* Since that time, our author's works 
 on the law of nations, (but particularly that which is now be- 
 fore us) have been considered as standard authorities, in Great 
 Britain as well as in the United States, and are daily quoted 
 
 * Admiratus prxcipue viri eruditissimi judiclum acre, ingenium solers, juris 
 scientiam inuaitatam ac denique incredibilem. 
 
 \ Nutre auteur est un de ces ecrivains du plus haitt vol, qui n'e'crivent que pour 
 let si'tmntu, et qui nc veuient dire, autant qit'il se pent, rien que du nouvcau. Et il a 
 raisrtn dc ^e mettre sur ce pied Id. S^uaiid on est si riche de son propre fonds, on 
 Jait ires lien de laisser d d'autres te soin d' ' emprunter ce qui a fte" dejci dit. 
 
 * Lord Mansfield spoke extremely well of Bynkcrshoci, and recommended 
 especially, as well worth reading, his book of prizes, $ti<est tones juris puoiici. 
 2 Bur. 690. in margin.
 
 ACCOUNT OF THE AUTHOR. xix 
 
 with respect by the bar, and relied on by the bench as the 
 ground of their decisions. 
 
 Nor have our American statesmen been behindhand in com- 
 mending the merit and talents of this eminent writer. Among 
 them none has bestowed upon him more correct and judicious 
 praise, than the great character, who is generally understood to 
 be the author of the excellent Examination of the British doc- 
 trine, -which subjects to capture a neutral trade, not open in time 
 Qf peace. " Bynkershoek" says he, " treats the subject of belli- 
 gerent and neutral relations with more attention, and explains his 
 ideas with more precision than any of his predecessors"^ How 
 honourable to our author is this testimony, when we consider, 
 on the one hand, by whom it is given; and reflect on the other, 
 that in the list of those predecessors whom Mr. Madison 
 speaks of, are found the celebrated names of Puffendorff 'and 
 of Grotius! 
 
 It ought to be a great inducement to the study of the law 
 of nations, that the fame of those who devote themselves to * , 
 that important branch of science, extends throughout the civi- > ' > 
 lized world; while the most excellent works on mere munici- 
 pal jurisprudence, are hardly known or spoken of out of the y ^ 
 country which gave them birth. Thus the writings of Grotius^ 
 Bynkershoek, and Vattel, are read and admired in all Ame- |L. < 
 rica and Europe, while the very names of Coke and Dumou- 
 lin$ are unknown out of the countries where the particular 
 systems of law are in force, which they took so much pains to 
 methodize and elucidate. Of the truth of this observation, a 
 striking instance is to be found in the works of our author, who 
 from an opinion of lord Coke, which he hud found quoted and 
 misrepresented in Dr. Zoucti's treatise De jure inter gentes^ 
 conceiving him to be a writer entirely ignorant of the law of na- 
 tions, treated him and his opinion with the most marked con- 
 tempt, calling him a certain Coke, (Cocus quidairi); and punning 
 upon his name, declared that he could not concoct his opinions, 
 
 f Examination, &c. p. 22. 
 
 \ Styled the prince of the French Law -If Prince du Droit Francois. Vie 
 Jf Dtrmoulrn, par Blondeau.
 
 xx ACCOUNT OF THE AUTHOR. 
 
 nor could they be concocted by the other writers on the law of 
 nations.* 
 
 It is to be wished that this passage were expunged from 
 our author's writings, particularly as it is, perhaps, the only 
 time that he has indulged in such undignified language; and 
 unfortunately he has applied it to a man whom of all others 
 he would have admired, had his studies but led him to a pe- 
 rusal of his writings. Little did he know that that Cocus qui- 
 dam, whom he so unjustly despised, was one whose powerful 
 mind was in every respect congenial to his own; and yet he 
 thought him unworthy of his serious notice, while he paid an 
 unmerited attention to the works and opinions of such an in- 
 ferior writer as Dr. Zouch. But Zouch had written on the 
 law of nations, which is studied every where, and the great Coke 
 had only elucidated the municipal law of England, which is 
 not anywhere an object of attention, except in those countries 
 where it is the established system of jurisprudence. 
 
 Unfortunately many of the works that have appeared on 
 various subjects of the law of nations, are some of them pole- 
 mical writings, written in the heat of a particular controversy, 
 and on the spur of the occasion; and others, though professing 
 to be on a more liberal scale, do nevertheless betray the par- 
 tiality of their authors to the system adopted by the country in 
 which they lived, or the governments under whose patronage 
 they wrote: it is not so with the work which we now present to 
 
 * eamque sententiam tuetur Cocus Q_UIDAM apud Zoucheum, Dejur. 
 fee. p. 2. $ 4. Q. 19. Sed ego tdm dijficilis stomachi sum, ut earn sententiam 
 concoquere non possim, neque etiam concoxit Albericvs Gentilis neque Zoucheus. 
 Whitest, jur. pub. \. 2. c. 5. The opinion that our author could not assent to is 
 that which is expressed by Lord Coke in 4th Inst. 153. " If a banished mar. 
 " be sent as ambassador to the place from "whence he is banished, he may not be 
 " detained or offended there; and this also agreeth luith the civil law." But he 
 had not well considered that opinion, which appears a very sound one, and 
 perfectly agrees with his own, which is, that such a minister indeed, may 
 be sent out of the country; but that it would be a violation of good faith, to 
 detain and punish him for having returned, notwithstanding his sentence ol 
 banishment. But Byniershock viewed Lord Coke in the light in which he was 
 exhibited to him by Zouch, who represented that great man as learned, in- 
 deed, in the municipal law of England, but ignorant of the law of nations 
 Juris patrii Cor.sultitsimut noster Eduardus Cocus; ejus quod cum exteris obti':f 
 NONADEO PEKITUS. Zouch, ubi supra.
 
 ACCOUNT OF THE AUTHOR. X xi 
 
 the public; it was written at a time when Europe was in a state 
 of profound peace, when there was no particular point warmly 
 controverted between the European governments, and although 
 the author was a Dutchman, and wrote in the bosom of his 
 native country, yet we see that he did not even adopt the fa- 
 vorite doctrine, for which his government had been struggling 
 during the space of near a century, that free ships make free 
 goods; so that although many among us may not agree with him 
 on this particular point, still we cannot withhold from him the 
 praise of a strict and honest impartiality; and upon the whole, 
 very few propositions will be found in the present treatise, to 
 which all moderate and impartial men will not give their cor- 
 dial and unfeigned assent.
 
 A BRIEF 
 
 OF 
 
 SEVERAL WRITERS AND WORKS 
 
 CIVIL LAW AND TFIE LAW OF NATIONS: 
 
 Not generally known, and which are quoted or referred to in this book. 
 
 (the che-valier de). See note, p. 130. 
 
 AITZEMA (Leo or Leeuive). See note, p. 15. 
 
 BELLUS (Petrinus), a Venetian writer, author of a dissertation 
 De re militari, printed at Venice in 1563, 4to. It is to be found also 
 in the 16th vol. of Tractatus Tractatuum^ sen Oceanus Juris; an 
 enormous work, being a collection of legal tracts, in 18 folio vo- 
 lumes, published at Venice in 1584, under the auspices of pope 
 Gregory the 13th. It contains a multitude of writings on the civil 
 and canon law, by jurists of the middle ages; some of them of so 
 early a period as the sixth century. In this curious collection, there 
 are several tracts which relate to subjects of the law of nations. 
 
 BoLAnos (Juan de Hevia), a Sfianish writer, a native of O-viedo, in 
 the province of Aaturias; author of an excellent institute of the law 
 of -S/mz/2, entitled Curia Philififiica; the last part of which treats of 
 commercial and maritime law, and has been the foundation of many 
 subsequent works upon that subject. Roccus has borrowed liberally 
 from it. This work is remarkable for its clearness, brevity and pre- 
 cision, and lays down very sound and correct principles on the sub- 
 ject of maritime and commercial jurisprudence. The author informs 
 us, that it was finished at the city of Los Reyes, in the kingdom of 
 Peru, on Christmas eve, in the year 1615. It may therefore be 
 considered as an American production. The edition before us, was 
 printed at Madrid, 1 783, in folio. It is a book of very great authority 
 throughout the Spanish dominions, and in our territories of Orleans
 
 xxiv Notice of Writers referred to. 
 
 and Louisiana, and is often quoted by foreign writers, on subjects 
 relating to maritime law. 
 
 BUDD.SUS (John Francis}, a German professor at Halle, and af- 
 terwards at Jena, where he died in 1705. He was the author of 
 several works, and among others, of a book entitled Elementa Phi- 
 losofihiee firacticx, instrumentalis & theoretics, 3 vols. 8vo. the same 
 which is so contemptuously referred to by our author, and was 
 nevertheless formerly so celebrated, that the professors of the pro- 
 testant universities of Germany, took it for the text of their lec- 
 tures. He also wrote the great German historical dictionary, printed 
 several times at Basil and Ldfisig, in 2 vols. fol. 
 
 CLEIRAC, a Frenchman, author of a valuable work on maritime 
 *> law, entitled Les UK & Coutumes de la Mer. It contains, 1. The 
 text of the laws of Oleron, Wisbuy, and the Hanse Towns, with 
 learned notes. 2. Le Guidon de la Mer, an ancient French treatise 
 on maritime contracts, and principally on Insurance, divided into 
 sections, in the form of an institute, and enriched with notes fraught 
 with much curious learning. 3. The laws or ordinances of Antwerp. 
 and Amsterdam, concerning insurance. 4. A treatise on the French 
 admiralty jurisdiction, and a copious index to the whole work. 
 There have been several editions of this book; the first that we 
 find any mention of, was printed in 1647; and the last at Amster- 
 dam,'m 1788. 
 
 CODE DES PRISES. This French work is well known in this 
 country, but it is not generally understood that there are four 
 editions of it, or rather four different works, all nearly on the same 
 plan, but published at different periods; and containing more or 
 less information on the important subject of maritime captures. 
 
 The first is the Old Code des Prises, by M. Chardon, who was 
 secretary, under the monarchy, to the council of prizes at Paris. It 
 is entitled Code des Prises; ou recueil dcs Edits, Declarations, &c. 
 defmis 1400, jusqu' a present; Imprime fiar ordre du Roi; 2 vols. 
 4to. Paris, imprimerie royale, 1784. 
 
 The second is entitled Code des Prises maritimes & armements 
 en course, par le Citoyen G,, hommc de lot; 2 vols. 12mo. Paris, 
 Garnery, an 7. 
 
 The title of the third is JVbuveau Code des Prises, par le Cit. Le 
 Beau, 4 vols. 8vo. Paris, Imjirimerie de la Republique, ans 7, 8 5*9. 
 It is brought down to the 3d Prairial, 8th year, (23d of May, 1800.) 
 
 The fourth is entitled Code des Prises & du Commerce de terre 
 c5* de ?ner, par F. N. Dufriche Foulaines, jurisconsulte; 2 vols. 4to.
 
 Notice of Writers referred to. XX v 
 
 small close print. Paris, Dufirat du Verger, 1804. It is more copi- 
 ous and complete, and is brought down to a later period, than any 
 of the others. 
 
 CONSIHA BELGICA is a collection of official opinions given to 
 the states general of the United Netherlands, by the law officers of 
 that government. 
 
 CONSILIA HOLLANDICA, are the opinions of the' law officers of 
 the provincial states of Holland and West Friesland, collected in 
 like manner. 
 
 CONSOLATO DEL MARE. This celebrated work is but little known 
 in this country, owing to the difficulty of procuring it from abroad, 
 and to its being written in languages not generally understood. The 
 forty three first chapters have been translated from the Amsterdam 
 edition, by Westerveen, and published in the American Law Journal, 
 (vol. ii. p. 385, and vol. iii. p. 1.) but they relate only to the form of 
 judicial proceedings in the maritime courts of the kingdom of Ma- 
 jorca,a.nd are thought by many not to belong to the ancient Consotato. 
 
 The oldest edition of this work has lately been discovered by Mr. 
 Boucher, in the Imperial library at Paris. It is embodied with the 
 marine ordinance of Barcelona, of which it constitutes the principal 
 part, and was printed in that city, in the Catalonian language, in 
 the year 1494, thirty-seven years only after the discovery of the 
 art of printing. Mr. Boucher has favoured the public with a trans- 
 lation of it into the French language, printed at Paris in 1808, 
 several copies of which have already made their way into this 
 country. Mr. Hall, of Baltimore, (to whom the profession is already 
 indebted for a very good translation of the Praxis Curix Admirali- 
 tatis, enriched with learned and useful notes,) is, we understand, at 
 present employed in translating it into the English language, which 
 will entitle him to the thanks, not only of the scientific, but also of 
 the practical lawyer. That excellent book has been styled, with ,/-..; 
 great propriety, the Pandects of maritime law. 
 
 A copy of the beautiful edition of the Consolato, published at Ma- 
 drid, in 179 1, in the Catalonian language, with a Spanish translation, 
 by Don Antonio de Ca/imany y de Monpalau,is in the library of the 
 American Philosophical Society, to whom it was presented by his 
 excellency, the marquis de Casa Yrujo. 
 
 CUNJEUS or a Cun<eo (Gulielmus) author of a small treatise on 
 Suretiship (De matcria securitatifi). See MERCATURA (De}. 
 
 CURIA PHIMPICA, See BotAnos.
 
 x X vi Notice of Writers -referred to. 
 
 CYNUS or Cino, was a learned Italian lawyer, who flourished in 
 the beginning of the 14th century. He died at Bologna, in 1336. 
 He wrote a commentary on the CWe,and some parts of the Digests. 
 
 GALIANI ^theabbe/'Vrrfzarf&),is a celebrated Neapolitan writer. 
 He was secretary to the Neapolitan legation at Paris, and after- 
 wards a member of the Royal Council of Commerce in his own 
 country. In the year 1782, he published at Naples, his treatise De' 
 doveri de' Principi neutrali -verco i Principi guerreggianti, e di 
 questi verso i neutrali; (Of the duties of neutral and belligerent princes 
 towards each other.') It was translated into German by professor 
 Katiig, and published at Leip&ick, in two octavo volumes, in 1790, 
 under the title of Recht der Neutralitet ((he law of Neutrality.) 
 The life of Galiani has been written and published at Naples, by 
 Diodati,in 1788. See LAMPREDI. 
 
 GAMA (Antonio de}, born at Lisbon in 1520; was counsellor of 
 state, and high chancellor to the king of Portugal. He wrote, among 1 
 other things, a book of reports of Portuguese decisions, entitled, 
 Decision/ s Supremi Luaitanix Senatus, in folio. He died in 1595, at 
 the age of 75 years, greatly respected for his immense erudition. 
 
 GENTILIS (jHbericus;) born in the marquisate of Ancona, in the 
 Roman state, about the year 1550; was professor of the civil law at 
 Oxford, and died at London in 1608. He published a treatise, De 
 jure belli, in three books, which has not been useless to Grotius, 
 and in which, at that early day, he supported the belligerent claims 
 of Great Britain, against the pretensions of neutrals. Lam/iredi, in 
 his preface, says, that he was the first who endeavoured to intro- 
 duce a system of jurisprudence amidst the din of arms. Although 
 he may be properly considered as an English writer, it is remarka- 
 ble that his name does not appear in the Bibliotheca Legum Angli<e. 
 
 GRONOVIUS (John Frederick}, was born at Hamburgh, in 1611, 
 and was professor of literature at De-venter, and afterwards at Ley- 
 den, where he died in 1672. He published many valuable editions 
 of Latin authors, and among others of Groiiu^, Dejure belli ac fiacis, 
 with learned annotations. His son, James Gronomus, distinguished 
 himself likewise, by several works of learning and erudition. 
 
 GUIDON DE LA MER (<?). See CLEIRAC. 
 
 HORNE (Thomas Harttuell}, an Englinhman; is the author of an 
 useful work, entitled: A comfiendium of the statute laivs and regu- 
 lations of the court of admiralty, relative to shi/is rf war, Jiriratecrx, 
 firiz'ex, recaptures and prize money; with an appendix of notes, fire-
 
 Notice of Writers referred to. xxvii 
 
 cedents, &c. 168 pages, duodecimo; London, Clarice, 1803. This 
 book is scarce in America. 
 
 IMOLA (Joannes de), was professor of the civil law, at Bologna, in 
 the Pafial states, and a disciple of the elder Baldua. He composed 
 a great number of professional works, which were much admired 
 in his day, but are at present no longer read. He died in 1436. 
 
 KOCH, a Frenchman, professor of law at the university of Stras- 
 burgh, and member of the national institute, is the author of an ex- 
 cellent work in the French language, entitled, Abrege de I'Histoire 
 des Traites de paix entre les puissances dc I' Europe, depuis la paix 
 de Westphalie, Basil 1796. 4 vols. 8vo. 
 
 LAMPREDI, was a professor of the law of nations, at the univer- 
 sity of Pisa in Tuscany. He published at Florence, in the year 1788, 
 his Trattato del commercio dc' popoli neutrali in tempo dl guerre, 
 (a treatise on the commerce of neutral nations in time of war, .) It has 
 been translated into German, by professor Kcenig, Leipsig, 1790; 
 and into French, by M. Peuchet, Paris, 1802, one vol. octavo. M. 
 Peuchet tells us, that the ministry of Louis XVI. had ordered a 
 translation of this work to be made, but it was not executed during 
 his reign. 
 
 Lampredi combats on many points, the doctrines of Galiani, 
 
 whose book is written in favour of the freedom of the neutral flag, 
 while his opponent supports the opposite doctrine, so strenuously 
 contended for by Great Britain. These two works were written at 
 the close of the American war; the one at Naples, which was at that 
 time under French, a.nd the other in Tuscany, which was under 
 British influence. See GALIANI. 
 
 LOCCENIUS (Johannes}, author of a valuable treatise in three 
 books, entitled, Dejure maritime & navali. It has been published 
 by Hdneccius, together with Stypman's Jus maritimum &fiaulicum } 
 and Kuricke's Diatribe de Assecnrationibus, under the title of Scrip- 
 forum de jure nautico & maritimo Fasciculus, in two vols. 4to. Hat. 
 Magdeb. 1740. 
 
 MARQUAKDUS (Johannes'], a German, is the author of a very 
 learned treatise on mercantile law, in the Latin language, entitled, 
 Tractatus politico-juridicus de jure mercatorum & commerciorum 
 tingulari, in 4 books, printed at Frankfort, in 1 662, folio, 1316 pages. 
 It contains a number of public documents, historical facts, and other 
 valuable information. 
 
 MENOCHIUS (James), a lawyer of Puvia, in Italy, was so learned, 
 that he was called the Baldus and Bartholus of his age; no con-
 
 xxviii Notice of Writers referred to. 
 
 tempiible names among the civilians. He was president of the su- 
 perior court of Milan, and died in 1607, at the age of 75. Among 
 a variety of professional works which he published, and were much 
 read in his time, he wrote a treatise in folio, De arbitrariis Judi- 
 cum qmestionibus 5* causis condliorum, which is the work to which 
 our author refers in his 25th chapter, page 196. 
 
 MERCATURA (-^e), a large and valuable collection of treatises 
 and dissertations, by various authors of different nations, on subjects 
 of maritime and commercial law. It is entitled, De Mercaturd, De- 
 cisioncs & Tractatua varii & de rebus ad earn fiertinentibus, \ vol. 
 fol. Colon, 1622. It contains, amongst other things, the treatises of 
 Straccha and Santerna, and the little tract of Cunxus, mentioned 
 in this book; (See STRACCHA, SAKTERNA, CUNAUS.) It contains 
 also, a collection of the decisions of the court of Rota of Genoa, on 
 subjects of mercantile law, to the number of 2 1 5, much in the man- 
 ner of our common law reports: See Ingersolfs Roccus,p. 53. in not. 
 The remainder consists of a number of other tracts on similar sub- 
 jects, by various authors, which, as they are not mentioned in this 
 book, we think it unnecessary to notice here. 
 
 MORNAC (dnthony}, a French advocate, who died in the year 
 1619. He wrote a great number of professional works, which were 
 published at Paris, in 1724, in four vols. ./b/zo. He was a man of 
 great erudition. 
 
 NOODT (Gerardus), of Nimeguen, was a Dutch professor, whose 
 writings on the Roman law, are in very great repute among the 
 civilians. His works have been edited by Barbeyrac, the celebrated 
 commentator of Puffendorff '*x\&. Grotius, and printed at Leyden, in 
 two folio volumes, under the title of Gerardi JVoodt, Noviomagi, 
 Jufiscon^uUi & dnteceasoris, ofitra omnia. Lugd. Bat, 1760. 
 
 OMPTEDA (Henry Lewis, Baron von'), was ambassador of the 
 king of Great Britain, as elector of Hanover and duke of Bruns- 
 wick-Lunenburg, to the Diet of Ratisbon, and his minister pleni- 
 potentiary to the electoral court of Munich. He is the author of an 
 excellent work in the German language, entitled, Litteratur des 
 gcsammten sowohl naiiirlichen als fiositiven Volkerrcchts, or Litera- 
 ture of thf natural and positive law of nations; Munich, 1785, 2 vols. 
 8vo. It is a biographical, critical and bibliographical notice of 
 the various authors who have written on the law of nations, and of 
 their works, down to the time of its publication, arranged in a very 
 methodical o;der. 
 
 Roc c us (Franciscus), a Neapolitan, author of the celebrated
 
 Notice of Writers referred to. xxix 
 
 NOTABILIA de navibun et naulo; item de assecurationibus. An excel- 
 lent English translation of this well known work, the original of 
 which is very scarce, has been lately published, with valuable notes, 
 by Joseph Reed Ingersoll, esq. counsellor at law of this city; one 
 vol. 156 pages, octavo; Philadelphia, Hopkins and Earle, 1809. 
 This translation is executed with great judgment and accuracy, 
 and may, in our opinion, well supply the place of the original. 
 
 SANTERNA, (Peter") a Portuguese writer, author of a treatise upon 
 Insurance, entitled, Tractatus de assecurationibus & sponsionibus 
 Mercatorum. See MERCATURA (De). 
 
 STR ACCRA (Benvenuto), an Italian writer, author of a valuable 
 treatise on the law of merchants, entitled, De Mercaturd, seu 
 Mercatore. See MEKCATURA (Z)e). 
 
 Us ET COUTUMES DE LA MER. See CLEIRAC. 
 
 VALIN (Rene Josue), was born at Rochelle, in France, where he 
 exercised tl\e profession of an advocate, and was king's attorney, 
 in the court of admiralty, and in the municipal court. He was also 
 a member of the academy of that city, where he died in 1765. His 
 celebrated commentary on Louis XIV.'s Ordonnance dc la marine, 
 published at Rochelle, in 1760, in two vols. 4to. is well known in 
 the United States; but few are acquainted in this country with his 
 Treatise on Captures, published at the same place, in 763, in one 
 vol.Svo. This excellent work, worthy of the high reputation of its 
 author, is unfortunately out of print; the copy which we have in our 
 possession, was the last which remained two years ago in the book- 
 seller's store, at Rochelle. It is to be hoped that a new edition of it 
 will soon be published. 
 
 VERWER (Adriaan}, author of a work in the Low Dutch language, 
 entitled, Nederlants See Rechten, Averyen >.n Bodemeryen or The 
 maritime law of the Netherlands, and the law of average and bot- 
 tomry. It contains, 1. The laws of Wisbuy, and the ordinance of 
 Amsterdam, with notes. 2. Several ordinances of the Spanish kings, 
 sovereigns of the Netherlands. 3. A treatise on the law of bottomry. 
 4. A treatise on average, by Quintijn Weijtsen, with an index to 
 the whole. The edition before us was printed at Amsterdam, in 
 1764. 
 
 ZENTGRAVIUS (John Joachim}, was professor of divinity at Stras- 
 burg, and wrote in 1684, a dissertation, entitled, De originc, veri- 
 tate & obligatione juris gentium, in which he main rained against 
 Puffendorjf, the existence of a positive lau> of nations; a controversy 
 which called forth the abilities of several writers at that time, out
 
 XXX Notice of Writers referred to. 
 
 at this day appears little more than a dispute about words. Zent- 
 graviu* also wrote a dissertation on Commerce between neutrals 
 and belligerents. Strasb. 1690. 
 
 ZOVCH (Richard"), an Englishman, born in 1590, in Wiltshire^ 
 was professor of civil law in the university of Oxford, and was made 
 judge of the high court of admiralty, by Charles II. at the restora- 
 tion, in 1660. He wrote some elementary tracts on the civil law, 
 and distinguished himself in the celebrated controversy which took 
 place in that reign, on the subject of admiralty jurisdiction, and 
 was principally managed on the part of the civilians, by himself, 
 Dr. Exton, and Dr. Godolphin. He wrote a treatise on the law of 
 nations, entitled, Jurist Judicii Fecialis sive juris inter gentes is* 
 quastionum de eodem exfilicatio, in which he does little more than 
 retail the opinions, and often copies the very words of Grotius. 
 Although this work is frequently quoted by our author, he appears 
 to have been sufficiently sensible of its want of real merit. It was 
 published at London, in 1650, in 4to.; and at the Hague, in 1659, 
 in 16mo.
 
 A TABLE 
 
 AMERICAN AND ENGLISH CASES, 
 
 CITED OR REFERRED TO IN THE NOTES. 
 
 Note: Those printed in italics are American cases. 
 
 Page 
 
 AMITIE'(L') us 
 
 Atlas (the) 1 1 1 
 
 Bell z>. Gilson - 167 
 
 Blaireau (the) 156 
 
 Brandon v. Curling - 172 
 
 v. Nesbitt 167 
 
 Bristow v. Towers 167 
 
 Cheline's case - 134 
 
 Casseres v. Bell - 195 
 
 Demjisey v. Ins. Co. of Penn. - 169 
 
 Diana (the) - - 105 
 
 Donaldson v. Thompson 1 69 
 
 Emmanuel (the) - 111 
 
 Flore (the) 145 
 
 Fortuna (the) - 105 
 
 Franklin (the) 99 
 
 Furtado v. Rogers 172 
 
 Glass 3* Gibbs v. the Betsey 136 
 
 Grange (the} 6 1 
 
 Henckle v. Royal Exch. Ass. Co. - 166 
 
 Hendrick EC Maria (the) 38, 115 
 
 Herstelder (the) 38 
 
 Hollingsivorth v. the Betsey 136 
 
 Hoop, Cornelius, (the) 1 66, 1 67 
 
 Hudson v. Guestier - - 38 
 
 Immanuel (the) - 111 
 Jonge Tobias (the) - 96,99 
 
 Kellner v. Lemesurier - - 172
 
 xxxii TABLE OF CASES. 
 
 Page 
 
 Lothian v. Henderson 169 
 M'llvaine v. Core's lessee - - - 176 
 Mercurius, Geddes (the) - 99 
 Mercurius, Meincke (the) 96, 99 
 Murray v. the Charming Betsey 176 
 JVatterstrom, admr. \. Shift Hazard (District Court, Mas- 
 sachusetts) - - 171 
 Neutralitset, (the) 85, 96, 99 
 Planche v. Fletcher - 131,166 
 Potts v. Bell 16f 
 Princesa (the) - 99 
 Rebecca (the) 1 1 1 
 Rosalie and Betsey (the) 99 
 JRose v. Himely 38, 172 
 Silesia Loan Case . 196 
 Santa Cruz (the) 42 
 Smart v. Wolff 38 
 Talbot v. Jansen - . - 136,175 
 Thellusson v. Ferguson 166 
 Vryheid(the) 145 
 William and Mary (the) . 145
 
 TABLE 
 
 OF 
 
 REFERENCE, 
 
 1 O enable the reader to find in their numerical order, and by 
 the books to which they respectively belong, the several titles of 
 the Institutes, Digests, and Code, quoted in this work. 
 
 INSTITUTES. 
 
 De rerum divisione & adquirendo ipsarum dominio. Lib. 2. tit. 1. 
 
 DIGESTS. 
 
 1C?* The titles in italics are translated into English in the Ameri- 
 can Law Journal. 
 
 De adquirendo rerum dominio, lib. 41. tit. 1. 
 
 captivis Sc postliminio, lib. 49, tit. 15. 
 
 collegiis & corporibus, lib. 47. tit. 22. 
 
 distractione pignorum, lib. 20. tit. 5. 
 
 exercitorid actions, lib. 14. tit. 11. (2 Am. Law Journ. 462.) 
 
 institoria actione, lib. 14. tit. 3. 
 
 jure Fisci, lib. 49. tit. 14. 
 
 nautico fesnorc, lib. 22. tit. 2. (3 Am. Law Journ. 158.) 
 
 noxalibus actionibus, lib. 9. tit. 4. 
 
 origine juris, lib 1. tit. 2. 
 
 publicanis & vectigalibus, lib. 39. tit. 4. 
 
 ritu nuptiarum, lib. 23. tit. 2. 
 Locati, conducd, lib. 19. tit. 2. 
 Si quadrupes pauperiem fecisse dicatur, lib. 9. tit. 1. 
 
 CODE. 
 
 De legibus, If constitutionibus principum, lib. 1. tit. 14. 
 naufragiis, lib. 1 1. tit. 5. 
 
 Ne uxor pro marito, Sec. conveniatur, lib. 4. tit. 12. 
 
 |C7" The four works which compose the body of the civil law, 
 to wit: the Institutes, Digests, Code and Novels, are divided into 
 JBooka, Titles, Laws and Sections or paragraphs, and are generally 
 quoted by the English civilians, by referring to those divisions, as 
 for instance, Dig. I. 1. tit. 4. /. 5. 7., and sometimes Dig., D., or
 
 xxxiv TABLE OF REFERENCE. 
 
 ff. 1. 4. 5. 7., for Digest, Book I., ZVf/e 4., Law 5., Section, or P- 
 ragrafih 7 . The civilians on the continent of Europe, on the con- 
 trary, quote the heading of each title, and then refer only to the 
 numerical subdivisions of law and/iaragrafihj sometimes even, they 
 quote the first words of the law, and refer to the paragraph only 
 by its number. Thus our author, page 41, refers generally to the 
 law non omnium, which is the twentieth law of the third title of the 
 first book of the Digests. The references in this work being all by 
 the heading of the title, and not referring to its number, or to that 
 of the book in which it is contained, the foregoing table is presented 
 to our readers, that they may with greater ease turn to the several 
 titles of the books of the Roman law, which are quoted, or referred 
 to in the course of this work.
 
 W 
 
 ON THE 
 
 LAW OF WAR. % 
 
 CHAPTER I. 
 Of War in general* 
 
 HEN Cicero said, 1. 1. de Offi. c. 11., that there are 
 two kinds of contests between men, the one by argument, 
 and the other by force, by the latter of these he undoubtedly 
 meant war; though he did not intend, as Grotius would have 
 it,* to give thereby a definition of that state of things. Such 
 a definition would be imperfect, as is clearly that of Albericus 
 Gentilis, who defines war, Ll.de Jure Bell. c. 2., a just con- 
 tention of the public force. Both these definitions, although the 
 first and the least perfect is approved of by Grotius, are defec- 
 tive; and the reader will be convinced of it by attending to 
 the following which I have myself attempted, and which, if I 
 mistake not contains all the ingredients which constitute a 
 state of war. WAR, then, is a contest carried on between inde- 
 pendent persons, by force, or fraud, for the sake of asserting 
 their rights. Let us now proceed to examine it in detail. 
 
 I have said that war is a contest. By this word I have not 
 meant to express merely the act of fighting, but that state of 
 things which is called war; for if the thing itself be defined 
 with sufficient accuracy, its incidents will necessarily follow. 
 Thus jurists have defined slavery, not merely the act by 
 which freemen are subjected to the dominion of others, but the 
 very state and condition of servitude. Grotius himself has at- 
 tended to this distinction in his definition of war, which he 
 borrowed from Cicero. 
 
 * De Jure B. ac P. 1. 1. c. 1. 2. n. 1, 
 
 fA
 
 2 TREATISE ON THE LAW OF WAR. 
 
 War is also a contest between independent persons. This ap- 
 plies not only to nations, but to individuals not living in a 
 state of society; for both are equally independent. Nor 
 can this war between individuals be called a private war; 
 because the word private can only be used in contra-dis- 
 tinction to the word public, which cannot apply where there 
 exists no society. Wherever men are formed into a social 
 body, war cannot exist between individuals; the use of force 
 between them is not wr, but a trespass, cognisable by the 
 municipal law. Thus, if I extort from my debtor the ten pieces 
 which he owes me, I incur the penalty of the Julian law 
 against private force; because beating and wounding *do not 
 alone const! tute force in the sense of the prohibition, but it 
 applies to every case in which a man obtains even what 'be- 
 longs to him, by any other than legal means. L. 7. Jf. ad L. 
 y7. de viprivatd. 
 
 War is a contest by force. I have not said by lawful force^ 
 for in my opinion, every force is lawful in war. Thus it is law- 
 ful to destroy an enemy, though he be unarmed and defence- 
 less^ it is lawful to make use against him of poison, of missile 
 weapons, of firearms^ though he may not be provided with 
 any such means of attack or defence; in short, every thing is 
 lawful against an enemy. I know that Grothis* is of a dif- 
 ferent opinion with regard to the use of poison, and that he 
 distinguishes between the different kinds of missile wea- 
 pons.! ^ know that Zouch, who hardly ever decides upon 
 any point, is in doubt upon this question.:): But if we take 
 for our guide nature, that great teacher of the law of nations, 
 we shall find that every thing is lawful against an enemy as 
 such. We make war because we think that our enemy, by the 
 injury that he has done us, has merited the destruction of 
 himself and of all his adherents. As this is the object of our 
 warfare, it is immaterial what means we embrace to accom- 
 plish it. A judge will not be called unjust who orders a con- 
 victed criminal to be put to death by the sword of the execu- 
 tioner, though he be unarmed and bound with chains; for if 
 
 L. 3. c. 4. 15. f 18. t Part 2. $10.Q..5&.6.
 
 TREATISE ON THE LAW OF WAR. 3 
 
 he should unbind and arm him, it would no longer be the 
 punishment of .a crime, but a trial of courage and good for- 
 tune. If you think that you ought only to make use of the 
 same weapons against your enemy that he himself makes use 
 of against you, you must at the same time be of opinion, that 
 his cause is equally good with your own, and therefore that he 
 is entitled to the same advantages. But on the contrary, your 
 enemy stands with respect to you, in the situation of a con- 
 demned culprit; and so indeed you stand with respect to 
 him; though in the eyes of third persons, who are friends to 
 both parties, your cause and his are equally just, and you are 
 both equally in the right. 
 
 Nor oughtfraud to be omitted in a definition of war, as it 
 is perfectly indifferent whether stratagem or open force be 
 used against an enemy. There is, I know, a great diversity of 
 opinion upon this subject: Grotilts quotes a variety of au- 
 thorities on both sides of the question.* For my part, I think 
 that every species of deceit is lawful, perfidy only exceptedj 
 not that any thing may not lawfully be done against an enemy, 
 but because, when a promise has been made to him, both par- 
 ties are devested of the hostile character as far as regards that 
 promise. And indeed when the reason of war admits of every 
 mode to destroy an enemy, we cannot account for so many 
 authorities and precedents against making use of fraud or de- 
 ceit, but that as well the writers on the law of nations as the 
 leaders of armies improperly confound justice-, which is the 
 object of our present inquiry, with generosity, which is not 
 uncommon among warriors. Justice in war is indispensable; 
 but generosity is altogether a voluntary act. That leaves us at 
 liberty to destroy an enemy by every possible means; this 
 grants to him every thing that we would wish to be grant- 
 ed to ourselves in the like case; and thus war is carried on as 
 a duel formerly was in those countries in which that mode of 
 terminating differences was admitted. Justice permits the use 
 of numerous armies, of machines, firearms and other imple- 
 
 * L. 3. c. l.6. c.
 
 4 TREATISE ON THE LAW OF WAR. 
 
 ments of war, that the enemy is not possessed of; while gene- 
 rosity, on the other hand, forbids it. Justice permits every 
 kind of deceit, except perfidy, as I have before mentioned; 
 generosity does not admit of it, perhaps even though it be em- 
 ployed by the enemy; for cunning is a token of fear, while the 
 magnanimous mind 'is never afraid. St. Augustine says,* 
 " that when a just war is undertaken, it is of no consequence 
 whether it be carried on by fraud or open force." This 
 clearly applies to justice, and it is in fact justice that he treats 
 of. But when the Roman consuls wrote to king Pyrrhus: 
 " We do not wish to contend -with you by means of bribery or 
 fraud"\ and at the same time gave him notice of the offer that 
 had been made to them to poison him, they certainly did an 
 act of the greatest generosity. J Many nations have often 
 preferred generosity to justice; others have preferred justice 
 to generosity: the Romans themselves sometimes displayed 
 the one, sometimes the other. If then, as I have said before, 
 authorities and precedents are reconciled, the point will be 
 clearly settled by recollecting that justice may always be in- 
 sisted upon, though generosity may not. 
 
 Lastly, the definition says, for the sake of asserting their 
 rights. That is to say, in order to defend or recover what is 
 our own; for that is the sole cause, though I do not mean to 
 say that it is the end or object, of war. A nation which has in- 
 jured another, is considered, with every thing that belongs to 
 it, as being confiscated to the nation that has received the in- 
 jury. To carry that confiscation into effect may certainly be 
 the object of the war, if the injured nation thinks proper; nor 
 is the war to cease as soon as she has received a reparation or 
 equivalent for the injury suffered. The whole commonwealth, 
 and all the persons as well as the things contained within it, 
 belong to the sovereign with whom we are at war, and in the 
 same manner as we may seize upon the person and upon all 
 
 * Quzst. 10. in Josua. f Aul. Cell. 1. 3. c. 8. 
 
 $ The British government acted with equal generosity, when, by their 
 minister, Mr. Fox, they gave notice to the first consul of France, of the offer 
 which had been made to them to assassinate him. T.
 
 TREATISE ON THE LAW OF WAR. 5 
 
 the property of our debtor, so a sovereign in war may seize 
 the whole of the subjects and dominions of his enemy. It is 
 true that we can recover no more of a debtor than what he ac- 
 tually owes us; but in war all social ties are dissolved between 
 states. We make war to subdue the enemy and all that belongs 
 to him, by occupying every thing which belongs to the sove- 
 reign of the hostile country, and exercising dominion over all 
 the men and things that are contained within his territories; 
 for war is of so general a nature that it knows no measure or 
 bounds.* 
 
 * The Translator has taken the liberty to transpose this paragraph for the 
 sake of perspicuity. As it stands in the original, it ought to come in at the 
 beginning- of page 2, of this translation, but as it explains the latt member 
 of our author's definition, it seems best placed at the end. T.
 
 M 
 
 TREATISE ON THE LAW OF WAR. 
 
 CHAPTER II. 
 
 Of a Declaration of War. 
 
 ANY things are required by writers on the law of na- 
 tions in order to make war lawful, and particularly, they 
 think it necessary that it be publicly declared, either by. a spe- 
 cial proclamation or manifesto, or by sending a herald. This 
 v opinion certainly accords with the practice of the modern na- 
 tions of Europe, and it is perfectly clear, that before recourse 
 can be had to arms, a demand of satisfaction should be made 
 for the injury complained of. But this is not the question now 
 before us; it is whether after a reparation has been demanded 
 and refused, war can be immediately made without a previous 
 declaration? 
 
 Albericus Gentilis* is of opinion that it cannot; that a 
 war ought not to be secretly commenced, and that the 
 adverse party's friendship is to be publicly renounced. It 
 is true that by the law of nature there is no necessity for a 
 declaration of war. Grotius] is of that opinion and quotes 
 several authorities in support of it. He contends only that the 
 law of nations requires that a demand should be made, by 
 which it may appear that the party is forced into a war by the 
 refusal of a satisfaction which cannot be otherwise obtained. 
 As to declarations of war4 he thinks they have been intro- 
 duced in order that it should appear that the hostilities which 
 are committed are the acts of the whole nation, or of the sove- 
 reign, and not merely of daring individuals. Pujfendorjf^ and 
 Huberus\\ are of the same opinion, and support it by the same 
 arguments. Other writers, and among them Gentilis^\ and 
 Zouch,** think that a declaration of war is necessary, but that 
 it may be dispensed with in certain cases. Hertius]} does 
 
 * De Jure Bell. 1.2. c. 1. f L. 3. c. 3.6. n. 1. & 2. * C.3.11. 
 
 $ Ue Jure N. & G. 1. 8. c. 6. 9. 15. 1| De Jure Civitatis, 1. 3. 4. c. 4. n. 
 
 27. If De Jure Belli, 1. 2. c. 2. *" De Jure int. gent. P. 2. 10. Q; 1 
 
 ff Adnot. ad Pufcnd. I. 8. c. 6. 9.
 
 TREATISE ON THE LAW OF WAR. 7 
 
 not deny that the custom of declaring war has been handed 
 down to us by the Germans, but at the same time he is 
 of opinion, that that custom is not obligatory, and that no- 
 thing can be said of. those who do not conform to it but that 
 they are not to be considered as the most civilized nations. 
 
 Christian Thomasius^* a man of sound judgment, consi- 
 ders, in my opinion very properly, a declaration of war as an 
 act of mere humanity, to which no one can be compelled; and 
 he asks, with reason, what difference there is between a war 
 that has and one that has not been declared, and whether there 
 is a different law for the one and for the other? He does not 
 agree with Grotius^ who, quoting a passage from Dion Chry- 
 sostorn "that wars most frequently take place without a previous 
 declaration," is of opinion that such wars are lawful only by 
 the law of nature. On the contrary, he asserts that they are 
 justified by the law of nations, and immediately afterwards 
 he adds, that this is a question of so interesting a nature that 
 it deserves to be made the subject of a special dissertation. 
 
 I shall not, however, undertake to write a dissertation upon 
 it, but I shall devote to its investigation the contents of the 
 present chapter. My opinion is that a declaration of war is 
 not necessary, and that it is one of those things which may 
 very properly be done, but which cannot be insisted upon as a 
 matter of right. A war may begin by mutual hostilities as * < 
 well as by a declaration. The states-general appear to have 
 understood it so, when by their ordinance of the 17th of Ja- 
 nuary 1665 they declared, that -the Dutch ships taken by the 
 English might be claimed, because they had been captured 
 before a declaration of war, and before the commencement of 
 hostilities on the part of the Dutch. War may be justly begun 
 upon the denial of a just demand; for how does that differ 
 from actual hostility? I admit, in the fullest extent, that it is 
 necessary in the first instance to make a demand of what we 
 conceive to be due to us, but not that we are to accompany 
 that demand with threats of hostility, or with an actual de- 
 
 * A.d Huberum de Jure Civitat. 1. 3. $ 4. c. 4. n. 27. f Ibid. 6. n. 1.
 
 8 TREATISE ON THE LAW OF WAR. 
 
 claration of war. What Grotius says about interpellate applies 
 to a demand only; but what he says afterwards about a public 
 declaration, denunciatio, cannot be applied in like manner. Ne- 
 vertheless, it was from his and other's prejudices, although not 
 atall consonant to reason, that this subject, otherwise very clear, 
 began to become obscure. Yet it must have been evident, that 
 where there is no judge between the parties, as is the case 
 with princes, every one may forcibly retake that which be- 
 longs to him and has been unjustly taken away from him by 
 another, who refuses to make restitution. This being the case, 
 every one is at liberty to make or not as he pleases a declara- 
 tion of war; the necessity of such a solemnity can only have 
 been established by an agreement which between nations ha* 
 no obligatory force.* 
 
 Nations however, and princes, who are impressed with 
 sentiments of magnanimity, are not willing to make war with- 
 out a previous declaration. They wish by an open and manly 
 attack to render victory more glorious and more honoura- 
 ble. But here I must repeat the distinction between justice and 
 generosity, which I have laid down in the preceding chap- 
 ter: the former permits the use of force without any previous 
 notice; the latter considers every thing in a nobler point of 
 view, deems it inglorious to subdue an unarmed and unpre- 
 pared enemy, and considers it an unworthy act to attack and 
 despoil of a sudden those who have come among us on the 
 faith of the public peace, which happens to be suddenly 
 broken, perhaps without their fault. Hence Polybius, 1. 13. 
 c. 1., praises very highly the custom of declaring war, which 
 was peculiar to the Achaians and to the Romans, and he 
 praises them in the same manner for abstaining from fraud 
 and deceit in war; but his praise in both instances is due only 
 to their generosity. 
 
 Speaking of the Achaians, Polybius adds, that they had also 
 appointed a particular place to fight their battles in, precisely 
 
 * Non nisi conventtone, qute inter Gentes nulla est. Our author probably 
 means here that svich an agreement lias no force, except between the parties 
 to it; otherwise, he would appear at variance with himself. See pp. 3. 13. 17 
 
 T.
 
 TREATISE ON THE LAW OF WAR. 9 
 
 as we read of certain counts of Holland, who in ancient times, 
 when they intended to go to war, not only gave notice of it by 
 a public declaration, but appointed the time and place of com- 
 bat. This appointment of time and place Grotius* himself 
 acknowledges to be unnecessary, and yet he urges a declara- 
 tion as if it were indispensable. If you inquire into the reason 
 of this difference, you will find no other but that it is not at 
 present customary in Europe to appoint the time and place of 
 combat. Whence it appears, that Grotius, in writing his book 
 on the law of war and peace, has not so much written of the 
 universal law of nations, as of the customs and manners of 
 most of the European countries, which, as he himself teaches 
 us,| do not constitute the law of nations. But on other 
 points as well as on the present he has extracted the law of 
 nations from customs and manners alone; so that when he has 
 found these to differ on any particular question, he has hardly 
 ever ventured to decide upon it. 
 
 From what Polybius said, however, that it was an honour 
 peculiar to the Achaians and Romans that they did not make 
 war without a previous declaration, we sufficiently understand 
 that what is said by Dion Chrysostom, that war is most frequently 
 NOT declared\, is certainly true; not merely because it is not 
 required by the law of nature, but because such is the custom 
 or usage of nations. And indeed a declaration of war was not 
 so frequent among other nations, as among the Romans and 
 Achaians. Nor was such a declaration made by either party 
 
 when the other nations of Greece waged war with the bar- 
 
 " 
 
 barians or with one another; nor d<j we read of the Jews, 
 who went to war by God's command, that they ever declared 
 war against their enemies. Neither did the Macedonians 
 make a public declaration of war when they destroyed 
 
 * L. 3. c. 3. 11. f L.2. c. 8. 1. n. 1 & 2. 
 
 t la the original, this passage from Dion Chrysostom is quoted so as t< 
 mean, that ivar is most frequently DECLARED, (bella indicia Ittl TO jrxrov, ut 
 pluritnuni) but from the context it appears evidently to have been an error 
 of the press. The words of Chrysostom, are: voKipot a; tVJ TO xKurov 'AKHPTKTOI 
 ylywia.t. Wars are most frequently made WITHOUT a public declaration, and 
 so our author translates them very correctly above, page 7. T. 
 
 tB
 
 10 TREATISE ON THE LAW OF WAR. 
 
 with so much glory the empire of the Persians. Even at 
 this day, as far as I have been able to learn, none but the 
 European nations declare war; nor even do they all or 
 always do it, but they are accustomed so to do after the 
 example of the Romans, for no other reason perhaps than 
 because the Romans did so before them. For such was 
 the estimation in which the Romans have been held 
 among the nations of Europe, that not only their laws, 
 but their manners and customs have been adopted among us, 
 although those customs, as for instance that of declaring war 
 which we are speaking of, differed from those of the rest of 
 the world. Wherefore, if any sovereign of Europe should 
 make war without previously declaring it, as was done by 
 S Gustavus Adolphus upon the Germans in the last century, he 
 would certainly act contrary to the general custom of Euro- 
 pean nations, but none would say that he acted in opposition 
 to the law of nations, except those who call by that name every 
 thing which they see done in their own country. 
 
 But let us consult reason, whose authority is of so much 
 weight in the law of nations. Reason, as I have before said, does 
 not require any other formalities than that we should demand 
 in a friendly manner what has been taken from us; nor per- 
 haps will it even require that amicable demand; because all 
 laws permit the repelling force by force, nor do I know that 
 any solemnity in order to repel force is known to the law 
 of nations. But admitting that among good men it may be 
 proper or necessary to make a' previous request; yet if that 
 should be denied, wilWfc be prohibited to make use of force? 
 I surely do not prohibit it, though Grotius and others do, un- 
 less a declaration of war be previously made. But the argu- 
 ments which are commonly made use of in support of the 
 necessity of declaring war amount in fact to nothing. That 
 which is adduced by Gentilis is reprobated by Grotius him- 
 self,* while he gives another, which I have already quoted, 
 and which if not the worst of all is certainly a very bad one. 
 When two sovereigns commit hostilities against each other 
 withouthavingdeclared war, can we doubt thatitis their mutua) 
 * L 3.c.3. 11.
 
 TREATISE ON THE LAW OF WAR. 1] 
 
 will to make war? If we cannot doubt it, to what purpose would 
 their declaration be? When a thing is public and notorious, it 
 certainly requires no proof. That is not therefore a sufficient 
 argument, and yet Grotius has preferred making use of it in 
 order to deduce the necessity of declaring war, from its being 
 commonly done among European nations, though he well 
 knew that that was not sufficient to constitute the general 
 law. Reason alone, reason is the soul of the law of nations, 
 and if we take her for our guide in the present discussion, no W 
 argument will be found to prove the necessity of a declaration 
 of war, but many on the contrary, which I have adduced, to 
 shew that it is not necessary. 
 
 But even if this question were to be decided by the cus- 
 toms of European nations, authorities can also be quoted from 
 that source. To recur back to the precedents of ancient times 
 would be an endless task. That war of extermination which 
 was carried on between Spain and the United Provinces, 
 from the time of the foundation of our republic until the 
 year 1648, was begun by mutual hostilities, without any 
 public declaration. Because therefore no such declaration 
 was made, will the legality of the war, of the victories and of 
 the peace which followed in 1648 be doubted? I do not think 
 that it will. But the states of Holland seem to have thought 
 otherwise, when on the 4th of March 1600 they published an 
 edict declaring that the owners of the ships which Philip III. 
 had confiscated in Spain in 1658 should have satisfaction, be- 
 cause the Dutch before that time resorted freely to Spain, and 
 those ships had been confiscated without any previous warn- 
 ing. I do not approve of this edict, for who could justly 
 have required the king of Spain to declare war, when the 
 Dutch since the year 1581 had not ceased publicly to com- 
 mit hostilities against him? War, in fact, properly begins from 
 the mutual use of force, not to speak of other cases* men- 
 tioned by the publicists which fall within the same reason. 
 
 In the preamble of this edict, as well as in the edict itself, 
 the states-general add, that formerly, that is to say prior to the 
 
 * Zouch, De Jure inter gentes, part 2. sect. 10. 1,
 
 12 TREATISE ON THE LAW OF WAR. 
 
 year 1598, the Belgians* 'were allowed a free intercourse with 
 Spain. But of the truth of this fact I have never been able to 
 satisfy myself, and admitting it to be true, I cannot see how 
 it applies to the justice of the present case, as I shall shew 
 hereafter. If the Belgians thus carried on a free trade and in- 
 tercourse with Spain, it could not be by force of the laws of 
 war, but rather by the negligence of the magistrates. Indeed 
 it is stated in the preamble to the edict, by which on the 4th of 
 April 1586, the earl of Leicester, with the advice of the states- 
 general and their counsellors, prohibited the United Belgians 
 from trading with the Spaniards, that the king of Spain had 
 already condemned and sold Belgic vessels, both in Spain and 
 Portugal. And in the first section of the said edict of 1586, 
 as well as by another edict of the. 18th of July in the same 
 year, the earl of Leicester actually forbids all commercial in- 
 tercourse with the Spaniards. It is true, that by the first sec- 
 tion of the edict of the 4th of August following he restricted 
 the prohibition to trading with those places within the Belgic 
 territory, which were in the possession of Spain, and per- 
 mitted carrying on trade with Spain proper; but this was done 
 for no other cause than for the advantage of the Belgic mer- 
 chants, which brought no alteration in the laws of war, which 
 could not be changed without the consent of the Spaniards. 
 
 Even if a declaration of war had been necessary, it would 
 not have availed the Belgians any thing to prevent the con- 
 demnation of their vessels. For what if the Spaniards in that 
 very year 1598 had solemnly declared war against the Belgians, 
 and immediately afterwards condemned their vessels, perhaps 
 the same day? They might have done this conformably to the 
 laws of war; nor indeed are the Belgians or any other power, 
 when a war suddenly breaks out, in the habit of giving notice 
 to the subjects of their enemies to withdraw their effects and 
 property, or otherwise that they shall be forfeited. No one 
 ever required this; on the contrary, Tryphonius, in 1. 12. pr. 
 
 * Our author, when referring to the times of the Dutch revolution, calls 
 indiscriminately Dutch and Belgians those Nether landers, who were in insur- 
 rection against Spain. Several of the now Belgic provinces were at times in 
 possession of the insurgents. T.
 
 TREATISE ON THE LAW OF WAR. 13 
 
 ff. de Capt. & Postlim. Revers., lays down the contrary posi- 
 tion. And such is the practice of all nations, unless there be a 
 special convention to the contrary, which is sometimes the 
 case. There are a few examples of similar compacts. In the 
 fourth article of the treaty of Utrecht with Muyden and 
 Weesp,* of the 1st of July 1463, it was agreed that the 
 peace should last fourteen da)'s, after we the said city and 
 cities shall have written to each other* within which fourteen 
 days it shall be lawful for our respective subjects to withdraw 
 their goods and effects from the territory of their enemies. 
 In the sixteenth article of the treaty of peace between the king 
 of Portugal and the States-general, of the 6th August 1661, 
 it is stipulated, that if differences shall arise between the 
 said king and states, it is so to be declared, and within two 
 years from that declaration it will be unlawful to do an 
 injury to the property of the subjects of either party. After it 
 had been agreed in the year 1662 between France and the 
 states-general, that in case of a war taking place the subjects 
 of either party should be allowed six months to withdraw their 
 property from the territory of the other, the king of France 
 having declared war against the Dutch in the year 1672 
 issued a special edict declaring that the convention of 1662 
 should be observed. The same term of six months was 
 granted for the same purpose by the same powers to each 
 other by the fifteenth article of the peace of Nimeguen^ of 
 the 10th of August 1678, nine months by the thirty-ninth 
 article of the marine treaty of the lOth of August 1678, 
 nine months again by the fourteenth article of the treaty of 
 peace of the 20th of September 1697, and again nine months 
 by the thirty-sixth article of the treaty of peace of the llth of 
 April 1713. And in the thirty-second article of* the treaty of 
 peace between England and the states-general, of the 31st of 
 July 1667, it was stipulated, that if war should arise between 
 the parties, the effects of their respective subjects found in the 
 
 * Muyden and Weesp, or Wesop, are two towns of South Holland: the 
 former is situate at the mouth of the river Vecht (a branch of the Shine) 
 and the latter a few miles above it on the same river. y
 
 14 TREATISE ON THE LAW OF WAR. 
 
 territories of each other should not be- condemned, but six 
 months should be allowed to take them away. If these exam- 
 ples should not be sufficient, I could adduce several others 
 mentioned by Zentgravius, de Orig. Verit. & Oblig. Jur. Gent. 
 art. 7. 9. Where, however, there do not exist similar conven- 
 tions for suspending the state of war, whatever others may 
 say, hostilities may commence immediately. Grotius, who 
 requires a declaration, does not require any interval between 
 it and the beginning of hostilities. See 1. 3. De Jure B. & P. 
 c. 3. 13. Zouch and Zentgravius are of the same opinion. 
 Zouch, de Jur. int. gent, part 1. 6.* and Zent. d. loc. The 
 king of Spain, therefore, might in the year 1598 have declared 
 war. and immediately afterwards taken the Dutch ships, as 
 there was no convention between the two powers to the con- 
 trary, nor indeed could there be any between that sovereign 
 and a people whom he considered as his subjects. 
 
 Here then is a remarkable instance of a war carried on for 
 a great length of time without ever having been declared. 
 Indeed, I do not know how the Belgians could have required 
 a declaration of war from the Spaniards, when they themselves 
 never issued any, either at the commencement of hostilities, 
 or when they were resumed after the expiration of truces. 
 Nay, even admitting that such a declaration was indispen- 
 sably required by the law of nations, the Spaniards might 
 perhaps have objected that it was only necessary when war 
 took place between independent princes, but that it was never 
 used in a civil war, in which case it was perfectly lawful for a 
 sovereign to take the property of his rebel subjects. But I do 
 not urge this argument. It is sufficient for my purpose if I 
 make it appear that the edict of the 4th of March 1600 was 
 not predicated on the laws of war, but on the interest of the 
 Dutch merchants. It was the same interest which influenced 
 the Hollanders in the year 1639, and set them improperly at 
 variance with the states-general, in another case which was 
 no less dependent on the laws of war. For the governor of the 
 
 * Our author here quotes Zouch, 3. Q; 10. without referring 1 to the part 
 It is evidently a misquotation. The true reference (which we have restored) 
 is to part 1. $ 6. T.
 
 TREATISE ON THE LAW OF WAR. 15 
 
 Canary Islands having been taken by treachery and brought 
 into this country, arid the states-general being desirous of 
 detaining him as a prisoner, the Hollanders opposed it; but, 
 says Aitzema,* merely on the ground of its being detrimental 
 to their trade. For my part I think that they might well have 
 founded their opposition on the merits of the case itself: as 
 this was a much more shameful act than the condemnation of 
 the Dutch vessels by Philip II. in 1598; for although an 
 enemy's property may be taken and hostilities may be com- 
 mitted immediately upon a declaration of war, if there are no 
 treaties to the contrary, yet it is in no case lawful to betray a 
 friend. The Dutch had hitherto been admitted to trade freely 
 with the Canary Islands, and there was on both sides a free 
 commercial intercourse. A Dutch captain, who had been thus 
 admitted to trade, persuaded the governor to go on board of 
 his vessel, under pretence of carrying him from one island to 
 
 * Lib. 19. As this writer is frequently quoted in the course of this work, 
 we think it proper to give some account of his writings to the American 
 reader. LEO van AITZ.EMA is the author of an excellent Chronicle of the 
 events which took place during the middle part of the seventeenth century, 
 from 1621 to 1668. This work is published in six thick folio volumes, 
 (with an additional volume containing political tracts,) and contains aa 
 immense collection of state papers, during the period to which it refers, 
 which are connected together by the author's narrative. It is divided 
 into books, each book containing a recital of the public events and a copy 
 of the public documents of one year. It has been ably continued on 
 the same plan by L. Sylvius, in four folio volumes, down to the peace 
 of Rysviick, in 1697. This book, as well as its continuation, is entitled Saken 
 van Staet en Oorlogh, (Of matters of .State and War). Unfortunately it is 
 written in the Low Dutch language, which is understood but by few among 1 
 us. A translation of it into English would be a great acquisition to litera- 
 ture, and prove an invaluable mine of historical knowledge. From the 
 manner in which the public documents that it contains are connected and 
 introduced by short historical narratives, it is superior to any collection of 
 state papers that has ever appeared. It combines the advantages of such 
 a collection with those of a chronicle of the times, which, we believe, are 
 not to be found together in any other work ^xtant. There are two editions of 
 Jitzema, one in folio, the other in quarto. The latter is that from which 
 our author has taken his quotations, to the pacing of which he refers. 
 Being possessed only of die folio edition, we have thought it best to refer 
 merely to the book in which each particular passage is to be found. T.
 
 16 TREATISE ON THE LAW OF WAR. 
 
 another, instead of which he carried him to Rotterdam in 
 order to make him a prisoner. This appears to me to be 
 precisely the same as going to an enemy under the protection 
 of a flag of truce, with an intention however to seize upon 
 the first favourable opportunity to take away his life. 
 
 But let us pass on to other wars commenced and carried on 
 without any declaration. It is well known that when Gustavus 
 Adolphus invaded Germany, the emperor Ferdinand II. com- 
 plained that he had done it without a previous declaration of 
 war, upon which Gustavus replied that the emperor himself 
 had before invaded Prussia without any such declaration. It 
 is thus that princes, though bound by no positive law, enforce 
 upon each other the law of reciprocity. The same thing hap- 
 pened in the year 1657; for the French, in the midst of peace, 
 having detained the goods of Dutch subjects which they had 
 in their own country, the Dutch detained in like manner the 
 goods of French subjects. See the edict of the states of Hol- 
 land of the 26th April, and the decree of the states-general of 
 the 6th of May of that year. Indeed the states-general lay it 
 down in their said decree that such a detention among friends 
 is unlawful, unless for a just cause, and unless there has been 
 a previous demand and denial of justice. But no prince will 
 detain the property of foreigners, unless for a cause which he 
 himself thinks just. Certainly I would admit of a demand, 
 because a cause of complaint cannot otherwise be known; but 
 since the common use of resident ambassadors, which now 
 obtains, there can be but few cases of injury of which a com- 
 plaint is not made; for ambassadors are in the habit of making 
 frequent representations, if the smallest thing happens by 
 which their sovereign may be offended. But let us proceed. 
 
 We read of the Portuguese, that in the year 1657 they 
 seized the ships of the Dutch before any war declared or 
 hostilities commenced. And in the war which took place be- 
 tween the king of England and the states-general, which ended 
 in the peace of 1667, the states-general, in the letter which 
 they wrote to the king of England on the 16th of September 
 1666, complained that a great deal of property was taken from 
 them and their subjects; unlawfully, said they, because war
 
 TREATISE ON THE LAW OF WAR. 17 
 
 had not been declared. But of this the reader will judge from 
 the reasonings which I here adduce. Louis XIV. also, in the 
 year 1667, did not declare war against the Spaniards, and 
 yet, as it were, without breaking the peace, he ordered the 
 king of Spain to be expelled from dominions that he was pos- 
 sessed of, being of opinion that there was no need of a decla- 
 ration to take what belonged to him. Now, if a declaration is 
 necessary in any case, who, I ask, will put up with such a 
 pretext? For to make war is nothing else than to take forcibly 
 from an unwilling prince or people what we think to be justly ' 
 due to us. There is a long complaint on this subject in the 
 edict of the states-general against France, of the 9th of March 
 1689,* because the same king of Francehad, in the year 1688, 
 without any declaration of war, detained the Dutch subjects 
 and their ships and merchandize, and afterwards, imme- 
 diately on the declaration of war being published at Paris, he 
 took up arms, and seized on the goods of Dutch subjects. 
 
 The first part of this complaint was indeed just; for that 
 detention was a violation of the fifteent,h article of the peace 
 of Nimeguen and of the thirty-ninth article of the Marine 
 treaty of the 10th of August 1678, the period stipulated by 
 those several instruments, as above mentioned, for carrying ofi" 
 the effects of the respective parties, not being expired, so that 
 the state of war was in this respect suspended. It was there- 
 fore an act of injustice to capture such goods as might have 
 been carried off within the limited time. As to other goods, 
 there was no treaty concerning them, and therefore I doubt 
 whether the second part of the complaint was equally well 
 founded. But however this may be, the instances which I 
 have adduced are sufficient to prove that th'ere is no reason 
 why we should think so favourably of European manners, as 
 to refer to them for a convincing proof of the necessity of 
 declaring war. 
 
 * Sylv. contin, of Aitzema, b. 25. 
 
 tc
 
 18 TREATISE ON THE LAW OF WAR. 
 
 CHAPTER III. 
 
 Of War considered as between Enemies. 
 
 IT may be said that a state of war ought rather to exist among 
 princes for whose interest alone in most cases it is 
 carried on, than among their subjects, who, unless the war is 
 made for their own quarrel, are not actuated by so hostile a 
 spirit. Yet when hostilities are to be waged against another 
 nation, no one can expect that we shall compliment our ene- 
 mies and wish them well. The grave majesty of the Roman 
 people displayed itself in the conduct of Caius Popilius, who, 
 although he was saluted by king Antiochus, then his enemy, 
 refused to return the salutation while the war continued. So 
 we are told by Plutarch, Apophthegm, p. m. 364.: Livy, b. 
 45. c. 12., and Polyb. Excerp. Legat. c. 92., relate likewise, 
 that Antiochus offered his hand to Popilius, who refused to 
 take it. 
 
 The Roman consuls however, in their letter to king Pyr- 
 rhus, with whom they were at war, as related by Gellius, 
 b. 3. c. 8., wished him health. This perhaps was necessitated 
 by the state of Roman affairs at that time, but so addicted 
 to flattery has the last century been, as well as the present, 
 that princes omit none of the usual adulatory forms even in 
 the midst of war. Hence enemies now wish to each other 
 every kind of prosperity, call each other friends, and are 
 almost sorry for their mutual losses. This is exemplified in the 
 letters of the states-general to the king of England, of the 10th 
 of July,* 16th September, r and 26th of November, 1666; 
 and again in the letters of the king of England to the states- 
 general of the 4th of August, \ and 4th of October 1666. Al- 
 though the two nations were at that time at open war, and bent 
 upon mutual injury, yet the states-general write in their said 
 letter of the 10th of July 1666, que les offices de civilite ne 
 
 * Aitz. b. 46. f Aitz. ibid. 4- Aitz. ibid.
 
 TREATISE ON THE LAW OF WAR. 19 
 
 sont pas incompatibles avec les devoirs <de la guerre, that 
 an interchange of civilities is not incompatible with the duties 
 of war. And the king of France, in the year 1666, who was 
 then at war with the king of England, sent an ambassador 
 to condole with him on the conflagration of the city of 
 London. It is certainly noble to practise the duties of humani- 
 ty, clemency, piety and other magnanimous virtues in the 
 midst of war; but I think it disgusting to trifle with mere 
 words, for what else is it than trifling when you express 
 sorrow for the conflagration of a city to which you would 
 wish to set fire yourself?. 
 
 As the conqueror may lawfully do any thing that he pleases 
 with the vanquished, no one can doubt his having on that 
 account over him the power of life and death. There are so 
 many instances on record of the exercise of this right amongst 
 all nations in ancient times, that a large book would not be 
 sufficient to contain an account of them all; and the publicists 
 have already exercised their industry upon this subject. But 
 although the right of killing has almost become obsolete, yet 
 it is to be attributed merely to the will and to the clemency 
 of the victor; nor can it be denied but that it might be exer- 
 cised even at this time, if one should chuse to avail himself of 
 his right. That there still exist some remains of this right 
 is in full proof; for in this sense alone is to be taken and on 
 this ground alone is to be defended the edict of the states- 
 general of the 1st of October 1589, which inflicted the penalty 
 of death on those who should be found with the traitors of 
 Gertruydenberg; and also their other edict of the 24th Februa- 
 ry 1696, by which they inflicted the same penalty on those 
 enemies who should approach the shore nearer than the 
 buoys, or should land on the coast for the sake of plundering. 
 
 One who is in company with his fellow soldiers is not 
 guilty of any crime by the laws of war, though they be 
 traitors, nor is he who invades a hostile shore in hopes of 
 making booty. Drive him away if you can, but if you cannot, 
 why will you treat him differently from other enemies? It is 
 on the ground of the same right of life and death that I de- 
 fend the conduct of the Dutch* who sometimes hanged the 
 * Aitz.b. 6.
 
 20 TREATISE ON THE LAW OF WAR. 
 
 Spaniards because they were not ransomed, for so it is re- 
 lated to us. It is lawful to hang prisoners; but if it were not 
 lawful, there is no reason or authority for doing it because 
 they are not ransomed, but the contrary is practised, as will 
 be seen hereafter. 
 
 To the right of killing our enemies has succeeded that of 
 making them slaves, which was formerly exercised during 
 many ages. But this custom of making slaves of prisoners 
 has now fallen into disuse among most nations, in conse- 
 quence of the improvement of their manners. Cujacius, in- 
 deed has said, Comment, post, ad 1. 5.Jf. de "Just, et jfur., 
 that even among Christians, prisoners were still made slaves 
 of ; but that their servitude was milder than formerly. He how- 
 ever does not prove his position otherwise than by the right 
 of redeeming. But why should the custom of redeeming 
 prisoners and their detention until they are redeemed be con- 
 sidered as a species of servitude, any more than for instance 
 the imprisonment of foreign* debtors, until they pay what they 
 owe to us? For in those cases such debtors are never dis- 
 charged, unless they pay the money due, or give security for 
 it, precisely as in the case of prisoners of war. Nay, prisoners 
 of war, if they are not redeemed, are very often released, even 
 without a ransom. Thus the supreme military council of the 
 United Provinces on the 14th of December 1602, permitted 
 the release of twenty-four prisoners, taken at the siege of 
 Boisleduc, because they were not redeemed, and lest those 
 unfortunate wretches should perish by the miseries of a gaol. 
 It would have been very unexpected indeed, and quite con- 
 trary to the manners which now prevail, if the council had 
 ordered those prisoners to be either hanged or made slaves of. 
 Hence, when the rhingrave of Solms,} who served in the Bri- 
 tish army in Ireland in the year 1690, had ordered prisoners 
 to be transported to America, there to be made slaves, the 
 
 * In Holland, foreigners alone and transient persons, who have no domi- 
 cile in the country, are imprisoned for debt T. 
 Aitz. b. 30.
 
 TREATISE ON THE LAW OF WAR. 21 
 
 duke of Berwick* gave him notice, that if this should be done, 
 all the prisoners that he should make would be sent to the 
 galleys in France. But as slavery itself has fallen entirely into 
 disuse among Christians, we do not inflict it upon our prisoners. 
 We may however, if we please, and indeed we do sometimes 
 still exercise that right upon those who enforce it against us. 
 Therefore the Dutch are in the habit of selling to the Spa- 
 niards as slaves, the Algerines, Tunisians and Tripolitans, 
 whom they take prisoners in the Atlantic or in the Mediterra- 
 nean; for the Dutch themselves have no slaves, except in Asia, 
 Africa and America. Nay, in the year 1661, the states-ge- 
 neral gave orders to their admiral to sell as slaves all the 
 pirates that he should take. The same thing was done in the 
 year 1664.f 
 
 To the slavery of prisoners succeeded the custom of ex- 
 changing them according to their respective grades and ranks, 
 and detaining them until redeemed.:}: And the necessity of re- 
 deeming them is sometimes expressed in treaties, with a spe- 
 cified sum, according to the dignity of each person that may 
 be taken, which sum being paid, there is an *nd of that sum- 
 mum jus which belongs to the victors over their prisoners. 
 Among the Romans the right of capture was exercised upon 
 those who at the breaking out of the war were found in 
 each other's territory, 1. 12. ff. de Capt. et. Postlim. Revers.; 
 but in modern times it rarely takes place, although the right 
 still exists. Nay, Louis XIV. himself, king ofFrance, when on 
 the 26th of January 1666, he had declared war against Eng- 
 land by sea and land, and interdicted all commerce between 
 
 * The duke of Berwick, a natural son of James II. of England, com- 
 manded at that time the French army in Ireland. He was afterwards com- 
 mander in chief of the French forces in Spain, during 1 the succession war, 
 while the British troops were commanded by the earl of Galway, a French- 
 man. T. 
 
 f Aitz. b. 41. 44. 
 
 | We are informed by the public papers that by a late cartel which has 
 been settled between the British and French, sixteen French prisoners are 
 to be given for every nine British, until the whole are regularly exchanged; 
 it having been ascertained that the number of French prisoners in England 
 exceeds that of the English in France in that proportion. T.
 
 22 TREATISE ON THE LAW OF WAR. 
 
 the two nations, in consequence of which the English who 
 were in France were in fears for their persons and property, 
 issued on the 1st of February 1666, another edict, telling 
 them that their fears were vain; for that by the edict of 
 the 26th of, January 1666, he had merely declared war 
 against those of the English who should be found thereafter on 
 the high seas, or who should commit hostilities on the French 
 territory, but not against those private individuals who had 
 established their domicil in France; that however, it was his 
 pleasure that English subjects residing in France, and who 
 were not naturalized, should depart within three months, and 
 go whithersoever they should please. 
 
 But that this is to be attributed solely to humanity, if there 
 exist no treaties suspending the state of war, I have endea- 
 voured to shew in the preceding chapter.* Because, however, 
 there are many such treaties, the laws of war are seldom 
 exercised upon those who have come in time of peace to a 
 country where war afterwards has arisen, and have been 
 found there at the time of the war's taking place. But after 
 the expiration of the time which has been granted to them 
 ^ { either by humanity or by treaty, those who remain in the 
 . country, or come into it without permission, may lawfully 
 be arrested. On this principle, the states-general on the 4th 
 of April 1674 issued an edict, that if any enemies should tarry 
 within the United Provinces or the dominions of the states- 
 general, without having obtained liberty to come, they should 
 be arrested, and not be restored until redeemed. 
 
 But although the right of killing prisoners has fallen into 
 disuse, it is made a question, however, whether it may not 
 be, without the least imputation, exercised upon those who 
 defend themselves too obstinately; and there are some who 
 maintain the affirmative. But I think it would be a shameful 
 action, unless the weak and defenceless girl, who obstinately 
 
 * On this principle, probably, the first consul of France arrested and de- 
 tained, without any previous notice, all the British subjects who were found 
 in France at the commencement of the present war. The principle may be 
 . . correct; but if it is, it must be acknowledged that the summumjut of war 
 is very near akin to barbarism. T.
 
 TREATISE ON THE LAW OF WAR. 23 
 
 resists the attempts of a libertine, should also be deemed 
 deserving of punishment. 
 
 Every thing is lawful against an enemy, but nothing can be 
 more cruel than to punish him for his courage. Nay, we 
 even admire the courage of our enemies, and we are indignant 
 at their cowardice. I remember to have read, that the Algerine 
 corsairs tore to pieces and loaded with every kind of igno- 
 miny a certain captain who had meanly given up his vessel 
 when she was in a condition very fit for defence, and had 
 only stipulated for the liberty of his own person. For even 
 with enemies fortitude is glorious and cowardice contemptible. 
 If you wish to read what others have written upon this 
 subject, you maybe gratified by reading Gehtilis, de Jure Belli, 
 1. 2. c. 16.; Grotius, deJ.B.acPac. 1. 3. c. 4. 13., nndZouch> 
 de Jur. Fee.* part 2. 10. Q. 9. 
 
 We have laid down what it is lawful to do with living 
 enemies, but what shall we say of the remains of those who are 
 dead? In ancient times their bodies were abandoned to beasts 
 and birds of prey, but now the conquerors either bury them 
 themselves, or deliver them up to be buried. Sometimes even 
 more is done for the sake of humanity. On the 1 6th of Sep- 
 tember 1666, the states-general caused the body of an English 
 admiral which was in their power to be embalmed, and sent 
 it over to England. They had before, viz. on the 10th of 
 July 1666, written to the king of England, to know whether 
 he wished that corpse to be sent thither or be buried in 
 Holland, and on the 4th of August 1666 he chose the former. 
 The French did the same thing in the year 1692. 
 
 There can be no doubt but that from the nature o. war 
 
 < s 
 
 itself, all commercial intercourse ceases between enemies. 
 For to what purpose will trade be carried on, if, as is clearly } v 
 the case, the goods of enemies brought into our country are 
 liable to confiscation? And if he who having obtained the 
 right of killing his enemy should go with merchandize into the 
 hostile country, and the enemy should kill him in the midst of 
 
 * This work is sometimes referred to by the title De Jure Feciali, some- 
 times by that De Jure inter gentes, which is indifferent, as it bears botk 
 titles. T.
 
 24 TREATISE ON THE LAW OF WAR. 
 
 commercial intercourse, would you think it justly done? But 
 every commercial intercourse ceases. Hence in declarations 
 of war commerce with the enemy is prohibited, and it is often 
 done by subsequent edicts. By the eleventh section of the 
 edict of the earl of Leicester of the 4th of April 1586, inter- 
 dicting trade with the Spaniards, it is enacted that those who 
 should carry on such commerce contrary to that edict should 
 be hanged and their ships and goods confiscated, .if they were 
 subjects, but if foreigners, they should only be punished by 
 the confiscation of their ships and merchandize. The same 
 was enacted by the twelfth section of the edict of the said earl 
 of the 4th of August 1586. And by the thirteenth section of the 
 edict of the 4th of April, and the fourteenth of that of the 4th 
 of August, the intention to carry on trade with the enemy was 
 punished in the same manner as the fact itself, and thus the 
 states of -Holland had formerly enacted on the 27th of July 
 1584. It was moreover added to all those edicts, that there 
 should be no prescription or limitation against the charge of 
 having traded with the enemy, whether they were taken in the 
 fact or not. And by the same edict of the states of Holland 
 of the 27th of July 1584, the pecuniary penalties which it 
 inflicts were to be recovered not only from the delinquent but 
 from his heirs, which I do not believe to be conformable to 
 the Roman law: for the offence provided against by these 
 edicts does not, if we will be candid, amount to the crime of 
 treason, but is a particular species of offence, to which one is 
 instigated by cupidity and the love of gain rather than by a 
 ^reasonable intent. 
 
 Bflt although trading with the enemy be not specially pro- 
 hibited, yet it is forbidden by the mere operation of the law 
 of war. Declarations of war themselves sufficiently shew it; 
 for they enjoin on every subject to attack the subjects of the 
 other prince, seize on their goods, and do them all the harm in 
 theirpower. The utility, however, of merchants, and the mutual 
 wants of nations, have almost got the better of the law of 
 war as to commerce. Hence it is alternately permitted and 
 forbidden in time of war, as princes think it most for the 
 interest of their subjects. A commercial nation is anxious to
 
 TREATISE ON THE LAW OF WAR. 25 
 
 trade, and accommodates the laws of war to the greater or 
 lesser want that it may be in of the merchandizes of others. 
 Thus sometimes a mutual commerce is permitted generally; 
 sometimes as to certain merchandizes only, while others are 
 prohibited, and sometimes it is'prohibited altogether. But in 
 whatever manner it may be permitted, whether generally or 
 specially, it is always, in my opinion, so far a suspension of 
 the laws of war. And in this manner, there is partly war and 
 partly peace between the subjects of both princes.* The herring 
 fishery was permitted on both sides by the edicts of the French 
 and Dutch of the year 1536, and formerly by the edict of the 
 latter of the 22d of December 1552. To which is to be added, 
 what was done during the whole of the Spanish, Portuguese 
 and English war, in the years 1653, 1665 and 1672, and also 
 during the French war in the years 1672, 1689 and 1702, 
 for it would be too long to commemorate every thing. 
 
 It is a question whether our friends are to be considered as 
 enemies, when they live among the latter, say in a town which 
 they occupy. Petrinus Bellus, de Re Milit. part 2. tit. 11. n. 
 5., thinks that they are not. Zouch, de Jure Fee. part 2. 8. Q. 
 4., gives no opinion. For my part I think that they must also' 
 be considered as enemies, certainly as to the goods which they 
 have within the hostile territory, and therefore those goods 
 may properly be taken by us by the law of war, if they have 
 been before taken by our enemies. We may lawfully take all 
 that belongs to the enemy, and those goods are a part of the 
 enemy's dominion, which as they may be useful to them, may 
 be hurtful to us. But if the goods of friends are within our 
 territory, although their owners may be within that of the 
 enemy, being detained there as prisoners by the law of war, 
 I would then speak differently; because it is true that these are 
 not th"e enemy's goods, nor can they be at all useful to him. 
 Again, as we are to do to our enemies all the harm that we can, 
 
 * How is it, when, as in the present European war, the belligerents trade 
 with each other, and prohibit neutrals from trading with their respective 
 enemies? According to our author's opinion, it seems that such belligerents 
 are so far at peace with one another, and at war with the neutral nations. T-. 
 
 to
 
 26 TREATISE ON THE LAW OF WAR. 
 
 why shall we not take from them goods which they themselves 
 have occupied by the law of war, and which they make use of as 
 of their own? I know upon whatprinciple others are of adifferent 
 opinion.* They say that our friends, although they are among 
 our enemies, yet are not hostilely inclined against us; for if 
 they are there, it is not from their choice, and the quo ammo 
 only is to be considered. But the thing does not depend only 
 on the quo ammo; for, even among the subjects of our 
 enemy, there are some, however few they may be, who are not 
 hostilely inclined against us; but the matter depends upon the 
 law, because those goods are with the enemy, and because 
 they are of use to them for our destruction. 
 
 * Our author here distinguishes between the goods of a friend which arc 
 within our territory, while the friendly owner is a prisoner with the enemy, 
 and those which having been captured by the enemy, as well as the person 
 of the owner, are retaken by us. The latter, he contends, are, though the 
 former are not, liable to confiscation. T
 
 TREATISE ON THE LAW OF WAR. 27 
 
 CHAPTER IV. 
 
 Of the Capture of movable property, and particularly of Ships. 
 
 \ ~\ 7"E have in the former chapters treated of the persons of 
 * * enemies, we shall now speak of their goods and actions. 
 It is evident that the enemy's property, whether movable orA< 
 immovable, may be lawfully taken. To whose benefit the cap- 
 ture enures, whether to the private captors or to the state, I 
 shall not now examine, as I am to consider this subject in the 
 20th chapter. But I shall at present attend to another ques- 
 tion, which is not less important and which occurs every day, 
 From what time is property changed by capture? I shall not 
 distinguish here between the different species of personal pro- 
 perty; whether a man be taken, or a ship, or merchandize, or 
 furniture, or any thing else which may be properly the object 
 of capture. By the Roman law, as Grotius very properly ob- 
 serves, the things taken are said to become the property of 
 the captors, when they are carried intra prcesidia,* for which 
 doctrine there is no other reason, but that now every hope 
 of pursuing and recovering the thing taken is at an end. 
 " Whence," says the same author,| " it seems to follow, 
 that ships and other things taken on the high seas, are con- 
 sidered as effectually captured, when they have been carried 
 into a port or harbour, or in a place where the whole fleet 
 is, for now their recovery begins to be despaired of. But," 
 he adds, " by the modern law introduced among European 
 nations, such things, in order to be considered as captured, 
 must have been twenty-four hours in the power of the enemy." 
 Which doctrine he applies in his notes to those things which 
 
 * Grot. De J. B. ac P. 1. 3. c. 6. 3. n. 1. f I b d- n, 2
 
 23 TREATISE ON THE LAW OF WAR. 
 
 are taken upon land. Zouch has stated Grotius's doctrine very 
 fairly,* and Loccenius* has done the same. What Grotius 
 says of the doctrine of twenty-four hours, that it is now 
 observed among all nations, without any distinction, whether 
 a captured ship has been carried or not into a port of the cap- 
 tors, the attorney-general in the court of admiralty of Amster- 
 dam, has formerly answered,^: and others are of the same 
 opinion. 
 
 But I never have been able to find that this custom was ob- 
 served. I have found, indeed, that the military judges deci- 
 ded thus on the 24th of December 1624, and also at another 
 time, but of what weight is the decision of men, mostly ig- 
 norant of law, who either have not been guided by any 
 authority or perhaps have been seduced by that of Grotius. 
 . What I shall say in this and the next chapter will abundantly 
 prove that this custom is repugnant to the laws and manners 
 of the United Provinces. I know, that in the year 1631, the 
 ambassador of the states-general in England^ requested the 
 states-general to sanction by their authority that principle of 
 jurisprudence, which vests the property in a prize after twen- 
 ty-four hours' just possession; but I do not find that the states 
 ever did so. It is indeed contrary to all reason; for if you con- 
 sider the thing by the mere light of common law, the true 
 reason of a change of property consists in a real possession. 
 But a real possession is that which may be safely retained. 
 Then what signify the twenty-four hours, if there may be a 
 real possession within that time, and if on the contrary a pos- 
 session may even continue longer and not be real? Certainly it 
 has been impossible to lay down a general rule upon this sub- 
 ject, on account of the great variety of cases that may happen; 
 but every case is to be considered by itself, and from every case 
 it will result, that the property of the thing taken will not vest in 
 the captor, unless he is able to keep and defend it. Things 
 taken in war, says the digest, belong to him who has first taken 
 possession of them. L.l. \.ff'.deAcquir. velAmitt.rer. Possess. 
 
 * De Jure Fee. part 2. 8. Q. 1. f De Jure Marit. 1. 2. c. 4. n. 4. 
 
 i C'.nsil. Belg. vol. 2. Cons. 66. Consil. Holland, vol. 2. Cons. 151 
 
 i: Ait/ I 11.
 
 TREATISE ON THE LAW OF WAR. 29 
 
 And he is not considered as having the possession of a thing, 
 who is not able to retain it. L. 22.^ Eod. Such is the opipion 
 of the most eminent jurists, which is dictated by the law of 
 nations itself. When, however, we have such a possession that 
 we may or may not retain the thing taken, the variety of 
 cases is such, as I have said, that it is not possible to give any 
 definition. We may, however, be considered as having a 
 firm possession, when we have carried the thing taken intra 
 prcesidia, to use the language of the Roman law. By prcesidia, 
 we understand castles, ports, towns and fleets; for in any one 
 of these the thing taken may be considered as safe, and in a 
 situation to be defended. 
 
 But how can the twenty-four hours be sufficient, if it is not 
 even sufficient, in order to change the property, that the cap- 
 tured thing should have been carried intra prcesidia? For 
 such is the mistaken idea of some, nay, of those whose 
 authority otherwise is of the greatest weight. They are 
 of opinion, that captured ships do not become the property 
 of the captors, unless they have been carried into one of his 
 ports and condemned there, and afterwards have freely navi- 
 gated to a neutral port. Of merchandizes and other things, 
 which are within the same reason, they might have said the 
 same thing, but 1 believe they were ashamed. I well know 
 what the states-general decreed concerning captured vessels 
 on the 27th of November 1666: " That if ships, taken by the 
 enemy and carried into England^ and the kingdoms thereto 
 belonging, and there condemned as prize, and purchased by 
 neutrals, should be captured by Dutch ships on their way 
 from the enemy's ports, either in ipso actu or afterwards, 
 before arriving at their port of destination or at some other 
 free port, such ships should then and therefore be declared 
 good prize, as was usual in ancient times, and agreeably to 
 the disposition of the fourth point of the case stated* of the 
 26th of June 163O, mutatis mutandis." I have quoted the 
 precise words of the decree, that I may not be thought to re- 
 late incredible things. You will wonder, indeed for my part T 
 
 * See the next page.
 
 30 TREATISE ON THE LAW OF WAR. 
 
 certainly do wonder, what it can signify, whether the ships have 
 arrived or not into one of the ports of the purchaser, or into 
 some other friendly port. This national or friendly port must 
 theu give, I know not how, I know not what, to I know not 
 whom. It would not give a right of property to the enemy, 
 who already had taken and sold the prize, nor to the purchaser, 
 who had thus purchased our own property from one who was 
 not the rightful owner thereof. Then that certain port of the 
 neutral purchaser or of his friend would actually be the thing 
 that would take the property of the vessel from us. If recourse 
 was to be had to a fiction, it would have been better to sup- 
 pose that the vessel became enemy's property by the enemy's 
 capture, remained such until it was purged of that taint, and 
 that it could not be so purged until it had entered the port 
 of the neutral or of one of his friends, until which time it 
 might be lawfuly retaken. But such a fiction would not have 
 been legal, because by the act of purchase the thing belongs to 
 the purchaser, nor is it material whether it was originally 
 his, or whether it became his property by capture and condem- 
 nation. 
 
 But observe how improperly ancient custom is appealed to, 
 and see that other decree of the states-general of the 26th of 
 June 1630, which is supposed to have given rise to that 
 custom. That decree was made on a case stated by the ad- 
 miralty of Amsterdam, which contained several questions, to 
 the fourth of which the states answer thus: 
 
 " On the fourth point their high mightinesses declare, that 
 ships taken by the enemy, carried into Flanders, and pur- 
 chased by neutrals, but which shall be taken in the very act of 
 coming out of the enemy's ports or on their way from them, 
 before they have been into their own or in other free ports, 
 shall be lawful prize, as has always been the custom in ancient 
 times, by virtue of the right herein before alleged as to the 
 first point; and likewise such vessels, which being so cap- 
 tured and purchased, and having run out of the said Flemish 
 ports into other ports under the dominion of the king of 
 Spain, and coming from thence, shall be captured by Dutch 
 ships.'*
 
 TREATISE ON THE LAW OF WAR. 31 
 
 That this decree is very foreign to that cause appears from 
 the case stated itself; and the states-general themselves, by 
 referring to the first head of tke decree,* sufficiently make 
 known what was their reason for enacting it. The fact is, that 
 for the sake of preventing commercial intercourse, the states- 
 general had blocked up the ports of Flanders with ships of 
 war, so that all vessels, to whomsoever belonging, bound to 
 those ports, or sailing from them, were condemned by them 
 as lawful prize; because by the law of nations and accoi'ding 
 to the principles of reason it is not lawful to carry any thing 
 to a blockaded port, nor to take any thing away from it. 
 Therefore the admiralty said, and the states-general decreed, 
 that the same law applied to vessels which had been before 
 taken from us and afterwards sold, because it was lawful to , 
 take even the ships of friends when trading with blockaded \ 
 ports; which is true so far, that is, if they are taken before 
 their voyage is ended, and while employed in the illicit 
 trade, for the voyage is not considered as completed until 
 the vessels have entered into their own or a friendly port. 
 
 This and nothing else was what the states-general had in 
 view by the said decree of the 26th of June 1630, and on 
 these principles, that of the 27th of November 1666 would have 
 been very proper, if in that year the whole of England, Scot- 
 land and Ireland, and all the British dominions in Asia, 
 Africa and America had been blockaded by the fleets of the 
 states-general. It is indeed related, that in the year 1652 
 they boasted of a similar thing with regard to the English, 
 having prohibited all trade with them to all the world.f But 
 upon what foundation they so boasted I do not now inquire. 
 I content myself with observing, that the same states-general 
 in 1663 denied to the Spaniards, who pretended to blockade 
 the whole of Portugal, that same right which they had before 
 arrogated to themselves against the English. These facts are 
 so recorded in Aitzema's chronicle.:}: 
 
 * That is to say, the Jirst point of the case stated, on which the states 
 made their decree. What that Jirst point was, does not precisely appear, 
 though it may be gathered from the context of our author's observations on 
 the whole decree. T. 
 
 f Aitz. B. 32. 1 Aitz. B. 43.
 
 32 TREATISE ON THE LAW OF WAR. 
 
 From thence it appears, that the said decree of the states- 
 general of the 27th of November 1666 cannot be defended. 
 And indeed if we once admit the principles of that decree, a 
 number of monstrous consequences will necessarily follow: for 
 as the poet says, 
 
 " Si prava est regula prima, 
 " Omnia mendose fieri atque obstipa necesse est." 
 
 It will manifestly follow, that all enemy's goods, without 
 exception, will be placed in precisely the same predicament; 
 for whatever enemies have by capture is as much their own 
 as what they have by succession, purchase, or by any other 
 title. Therefore the same is to be said, not only, as I 
 observed before, of merchandize and other things which 
 enemies have "taken from us, but also of ships, and every 
 thing else which they have otherwise than by taking it from 
 us, and which our friends have purchased from them. If 
 this be admitted, we must also admit that it is lawful for 
 princes to interdict their enemies from the use of fire and 
 water, and to forbid all the world from carrying on a com- 
 mercial intercourse with them, which hitherto has only been 
 done so far as relates to those things which are called contra- 
 band: for all things of that kind which our friends may pur- 
 chase of our enemies, may lawfully be taken and confiscated, 
 unless they have been carried into a neutral port. 
 
 But it is unreasonable to infer a general rule from a law 
 which, against the principles of reason, has been established 
 in a particular case, by which means a pretence will be given 
 to every sovereign to commit injustice. On this and no other 
 ground was founded the edict of Louis XIV. king of France, 
 of the 17th of September 1672, by which he ordered the cap- 
 ture and confiscation of all vessels, even purchased by his 
 friends in the United Provinces and found coming from 
 thence. In consequence of that edict, on the next day a certain 
 vessel was condemned which had been taken coming from 
 Holland, where she had been built and purchased by Ham- 
 burghers, manned with a Hamburgh crew, and was going to 
 Hamburgh. To that edict of the king of France, the states- 
 general, that they might not appear to do less harm to their
 
 TREATISE ON THE LAW OF WAR. 33 
 
 friends, (for such things fall upon the heads of friends) 
 replied by an edict in which they decreed " that all ships 
 purchased by neutrals within the dominions of the king of 
 France, although manned with a neutral crew, which sailing 
 for the first time from the enemy's ports, and not yet having 
 been in the neutral port to which they were bound, 
 should fall into the hands of Dutch cruizers, should be 
 lawful prize." One would think that this edict was founded 
 on the law of retaliation; but retaliation is 'only to be exercised 
 on him who has committed the injury, and not against a 
 common friend. Therefore the edict of the states-general of 
 the 29th of November 1666 cannot fare defended on the ground 
 that the English had before acted with a greater degree of in- 
 justice when their ambassador, on the 23d of December 1664, 
 gave notice to the Hanse- Towns, who were in amity then both 
 with England and the states-general, that all the ships which 
 they should purchase in the territory of the United Provinces 
 should, without distinction of voyage, be considered as ene- 
 mies.* He who has done no injury ought not in justice to 
 suffer. 
 
 Moreover, from those decrees of the states-general of 1630 
 and 1666, one might think that it appears that those things 
 which our friends have purchased from our enemies cannot 
 be taken from them, if they have once been carried into a 
 neutral port, as they say that such things may be lawfully 
 condemned, " before they have been into their own or some other 
 neutral port:" but so much does not even sufficiently appear. 
 The admiralty of Amsterdam had consulted the states- 
 general upon this subject, but nothing was decided upon it; 
 for the states simply answered by their letter of the 26th of 
 June 1630, " As to ships taken by the enemy from the inha- 
 bitants of this country, carried into Flanders and there con- 
 demned, which without being taken should be carried into 
 England, France, or other neutral countries, and should be 
 captured by our ships on their way from thence on other free 
 
 * Aitz. b. 44.
 
 34 TREATISE ON THE LAW OF WAR. 
 
 voyages, we ought to have some short time to consider, 
 whether or not they should be declared lawful prize, re- 
 questing that in the mean time you will communicate to us 
 the sentences that have been given in similar cases, and the 
 decisions that have taken place thereon in other countries." 
 On this same question I find that the court of Holland was 
 consulted in the following year, 1631; but I do not know what 
 answer they gave. But although the Dutch lawyers, requested 
 to give their opinions on the same point, on the 25th of 
 January 1636, answered very properly and upon true legal 
 principles, " that our ships, taken by the enemy and purchased 
 by neutrals, became by the very act of capture the property 
 of the enemy, and therefore lawfully belonged to those who 
 purchased from him," there have nevertheless been since 
 that time disputes upon that subject.* But that this doubt 
 of the states-general in the year 1630 may not hereafter 
 occasion any prejudice, when similar cases shall arise, I 
 must repeat what I have said above, that they had a special 
 case before them, that the question was concerning the 
 blockaded Flemish ports, which not being attended to, has 
 involved the point in obscurity; but that from thence it would 
 not be proper to argue as to ports which were not blockaded, 
 and to and from which a free ingress and egress was per- 
 mitted. The decree of the 27th of November 1666 is sufficiently 
 iniquitous, let us not therefore add to it another injustice, 
 which was not in fact such, because founded on a special 
 case. 
 
 But if the states-general had meant to say, that the pro- 
 perty of a prize is not altered, unless it has been carried into 
 the enemy's port, and has afterwards freely sailed from 
 thence and arrived into the port of a friend, what ground or 
 reason would there be for their edicts, by which, in case 
 of recapture of our vessels taken by the enemy, they 
 allow a part to the recaptor and a part to the original 
 owner? If mere capture transfers the property, what right 
 remains to the former owner? if not, what right has the 
 
 * Aitz. b. 21.; Id. b. 23.
 
 TREATISE ON THE LAW OF WAR. 35 
 
 recaptor to a certain part, when the former owner may reclaim 
 his property? I should think for my own part with many 
 others, that no right remains in him, and so is the usage 
 among all nations. These are things that can neither be 
 reconciled with the decree of the 27th of November 1666, nor 
 with law, nor with common sense*
 
 36 TREATISE ON THE LAW OF WAR. 
 
 ll^w 
 
 CHAPTER V. 
 
 Of the Recapture of movable Property. 
 
 WHAT I have lightly touched upon at the end of the last 
 chapter, I am now going to consider and discuss more at 
 large. Whereupon it is to be observed, that immovable pro- 
 perty, when recaptured, returns to the former owners by post- 
 liminy, but that movables which we now treat of do not so 
 return. It is thus laid down by Labeo, in 1. 28. de Capt. t? 
 Postlim. Revers: Si quid hello captum est^ in prccda esl, non 
 postliminio redit. " If any thing be taken in war, it is a prize, 
 and does not return by postliminy." As to ships, however, 
 although they are considered as movables, he distinguishes, 
 /. 2. pr.Jf. eod., that such ships as may be of use in war return 
 by postliminy, but others not. But this and other distinctions 
 of the Roman law between movable things have become 
 obsolete by the gradual change of manners, as Grotius justly 
 observes.* Hence now movable goods, without any dis- 
 tinction, are prize, without any right of postliminy. As a 
 consequence from this it has been inferred that goods taken 
 by the enemy, and afterwards recaptured, vest in the re- 
 captorsj because, as capture, in time of war, transfers the 
 property, so recapture must of course transfer it in like 
 manner. But we do not recapture for ourselves, except 
 those things which have pleno jure become enemy's pro- 
 perty; for if they have not, the former owner may still 
 vindicate his right. As to the time when movable goods are 
 considered pleno jure as having become the enemy's property, 
 it depends on the circumstances which I have treated of in the 
 preceding chapter. 
 
 Although the definition of this thing is very uncertain, so 
 much, however, is most true, that movable goods carried 
 intra praesidia\ of the enemy, become clearly and fully his 
 
 * De Jure Belli ac Pac. 1. 3. c. 9. 15. f Within the places of safety. T.
 
 TREATISE ON THE LAW OF WAR. 37 
 
 property, and consequently, if retaken, vest entirely in the 
 recaptors. The same is to be said of ships, carried into the 
 enemy's ports, and afterwards recaptured, so that no property 
 or right to them remains in the former owner, as I mentioned 
 at the end of the preceding chapter. On these principles, 
 the agreement which was made on the 22d of October 1689, 
 between the king of England and the states-general, then allies 
 in war, that each other's ships when recaptured should be 
 restored to the former owner, on payment of a certain 
 salvage, has been construed to apply only to cases where the 
 ships had not been carried into the ports of the enemy % for 
 otherwise they are to be entirely the property of the recaptors. 
 . So far is sufficiently clear, but what is not equally so is 
 what is to be understood by prcesidia, or ports? Is it the ports <X 
 of those who have taken the ship, or of their allies? It may be 
 said that it is enough if they are carried into the ports of the 
 latter, provided they are their allies in the existing war, and 
 equally with themselves the enemies of those whose vessels 
 have been taken. Prizes are equally safe in the ports of -such an 
 ally, as in those of the captor himself, and there is no hope of 
 retaking them, unless they should sail again out of that port. 
 But when the French had taken two Hamburg ships, on the 
 28th of December 1675, in which were the goods of Amsterdam 
 merchants, and had had them fourteen days in their posses- 
 sion, and afterwards carried them into the port of Hull in 
 England,* I find that the states-general entertained a different 
 opinion. The admiralty of Dunkirk, before the return of 
 the French, had condemned the said ships and their cargoes, 
 and the French had even sold a part of the goods at Hull; 
 and as the ships, with the remainder of the goods, were on 
 their way to Dunkirk, they were taken by the Zealanders, 
 carried into Zealand, and there condemned. But the states- 
 general, being applied to by the Amsterdam merchants, did, on 
 the 23d of October 1676, decree, that the recaptured goods 
 should be restored to their former owners, because they had 
 not yet been carried into the ports of the enemy and there con- 
 
 * England was at that time in alliance with France against the United 
 Netherlands. T.
 
 38 TREATISE ON THE LAW OF WAI 
 
 demned and distributed. By the ports of the enemy, the states- 
 general understood those of the captors, for they say " of the 
 aforesaid enemy" thereby implying that it was not sufficient that 
 the ships had been carried into another port, either of a. friend 
 or of an ally in the war. It appears to me that the Zealanders 
 had the lazv, and the states-general hud power on their side.* 
 
 Ships therefore become the property of the enemy, which 
 have been taken by them, and carried into their ports. But 
 what if they have not been yet carried thither, and should 
 have remained some time in the port of a friend or ally, or 
 navigated in company with the capturing ship? Certainly, 
 if we consider the laws of our country, and the authority 
 of publicists, it can hardly be said, that the length of time 
 that ships have been captured, or the place into which they 
 have been carried, though ever so safe, can transfer the pro- 
 perty, unless they have been carried into port. Hence jurists 
 simply say, that every thing which is retaken before it is car- 
 ried into the enemy's ports, is entitled topostlimmy, although 
 it may have been taken for several months, and although it 
 may have remained in the ports of a common friend, and that 
 it does not vest in the enemy, unless he has carried it into his 
 
 * From this, and what our author says afterwards, page 41, it seems that 
 he was of opinion that a belligerent might lawfully condemn enemy's pro- 
 perty, while lying tinder capture in a neutral port. Such appears also to have 
 been the opinion of that able civilian sir William Scott, (while advocate- 
 general) and of the whole court of king's bench in England, in 1789. (Smart \ 
 Wolff, 3 Term, Pep. 329.) But political considerations have since induced 
 that learnedjudge to maintain the opposite doctrine, contrary to the ancient, 
 nay, inveterate practice of his own country, which probably, however, 
 continues the same, 1 the superior court not having appeared disposed to 
 controvert the established principle and to adopt the new rule which was 
 pointed out to them. (The Herstelder, 1 Robinson's Reports, 100.; the Htndrick 
 :nul Si/aria, 5 Rob. 35. 6 Rob. 138. Amer. edit.) The supreme court of the 
 United States have sanctioned what appears to be the opinion of our author 
 on this point, by their decisions in the cases of Rosev, Himely and Hudson v. 
 Giiestier, 4 Crunch's Reports, 241. 293. These decisions are conformable to 
 the universal practice of Europe for more than one hundred years, which is, 
 indeed, sufficiently justifiable, on principles of convenience to neutrals as 
 well as to belligerents. See Lampredi, del commercia de" popeli ncutrali ii> 
 rrmp'o di ftierra, part 1. 14. T
 
 TREATISE ON THE LAW OF WAR. 39 
 
 own ports. The word postliminy is very improperly used here, 
 because those who know what postliminy is, know also, that 
 it does not take place except in regard to those things which 
 had before become the property of the enemy. They should 
 have said, that before prizes were carried into port, they did 
 not become the property of the enemy, but remained the pro- 
 perty of the former owner, and that therefore when recap- 
 tured they returned to him, and did not go to the recaptor. 
 
 It will not be unprofitable to consider what laws have been 
 made on this subject in this country, taking them in their chro- 
 nological order. There are some who think from the edict of 
 the states of Holland, of the 4th of March 1600, that there 
 existed a right in favour of former owners to claim their cap- 
 tured property, wherever they might find it, even though it 
 had been carried into the enemy's ports. This is correct as 
 far as the edict goes, but it speaks only of those vessels, which 
 the states of Holland considered as having been condemned 
 in violation of the laws of war, as I have said before; (c. 2.) 
 therefore the edict does not apply to the present question. It 
 the ships have been lawfully taken, carried into port and 
 condemned, every claim must cease; and if they sail after- 
 wards, there remains nothing but a right to recapture, and 
 whoever retakes them will be their full and complete owner. 
 But it is important to know, before the carrying of the ship 
 into port and her subsequent condemnation, what right be- 
 longs to the former owner, and what to the recaptor? If we 
 know what belongs to the one, we know at the same time that 
 the remainder belongs to the other. 
 
 The oldest law that I know of on this subject, is the 
 edict of the states-general of the 4th of July 1625, by 
 which it is enacted, that if a vessel be retaken within 
 twenty-four hours, one eighth goes to the private recaptors; 
 if within forty-eight hours, one fifth; if afterwards, one 
 third. This law the same states-general on the 22d of July 
 1625, applied to ships of war, recapturing private vessels. 
 There followed afterwards another law also enacted by the 
 states-general, of the llth of March 1632, by which, without 
 any distinction of time, private recaptors were entitled to two
 
 40 TREATISE ON THE LAW OF WAR. 
 
 thirds of their recapture. But afterwards, on the 1st of 
 September 1643, the states-general altered this disposition, 
 for by the fifty-eighth section of their edict of that date, if 
 a ship be recovered within twenty-four hours, the recaptor is 
 to have one eighth; if within forty- eight hours, one fifth, and 
 if afterwards, one third, as in former edicts, which, I think, 
 were made on the 4th and 22d of July 1625. Afterwards 
 they returned to two thirds, without any distinction of time 
 with regard to privateers, agreeably to the edict of the year 
 1632. The 16th section of the edict of the states-general of 
 the 8th of February 1645, gave two thirds to the recaptors, and 
 added that the value of the vessel and cargo should be amicably 
 estimated between the owner and the recaptor, otherwise that 
 the admiralty should decree on the amount of salvage. They 
 again changed their minds on the 19th of April 1659, for 
 by a decree of that date, they gave to the recaptors, whether 
 of public or private ships, but one ninth part of the vessel 
 and cargo retaken, thus again abolishing every distinction of 
 time. This decree, however, was never published, but I have 
 found it among the acts of the states-general, and it is men- 
 tioned somewhere else. At last, the states-general, saving, as 
 they say, the ancient laws as to ships of war (what ancient 
 laws they meant I cannot say, as they have so varied) did on 
 the 13th of April 1677, decree as to private recaptors as fol- 
 lows, to wit: that they should have by way of salvage, one 
 fifth of the ship and goods retaken, if the same had not yet 
 been forty-eight hours in the possession of the enemy; if forty- 
 eight hours and less than ninety-six hours, then one third; if 
 more than ninety-six hours, one half. 
 
 The king of England and the states-general were pleased 
 to establish between them the same distinction and division of 
 time, and the same rates of salvage, by the treaty above men- 
 tioned of the 22d of October 1689, in case a privateer of 
 one nation should retake the ships or goods of a subject of the 
 other party, but if the recapture should be made by a ship of 
 war, the recaptor was to have only one eighth, without any 
 distinction of time.
 
 TREATISE ON THE LAW OF WAR. 41 
 
 Now, why so much variety? why these distinctions of time and 
 those greater and lesser shares in proportion thereof? Whence 
 again, if the distinction of time must be had, so much diversity 
 in the proportion of the salvage? Why also, rejecting all dis- 
 tinction of time, is now so large a proportion as two thirds 
 and now so small a one as one ninth allowed to the recaptor? 
 Certainly it is difficult to give a reason for things that have 
 been established without any reason, and here, if any where, 
 it will be proper to refer to the law non omnium* the reader 
 knows the rest. The public tranquillity of nations however, and 
 the repose of our own subjects, require that something certain 
 should be established upon rational principles. The whole de- 
 pends upon this question: when do we consider that captured 
 ships and goods vest absolutely in the enemy? The law indeed 
 has decided that they so vest by a true and complete occupa- 
 tion. But the yariety of cases and circumstances does not al- 
 ways permit us to know, whether there is actually a firm pos- 
 session, that is to say, such a one as the captor may retain and 
 defend. What the enemy has taken on the high seas, at a- 
 great distance from his territory, he may lose, and often 
 loses by recapture. If he carries what he has taken into his own 
 ports and territory, no one can doubt that it has then become 
 his absolute property. I -would say the same if he had carried 
 it into the port of a neutral OF of an ally, but if this , as I said 
 above, cannot be admitted,} I must grant, that whatever is taken 
 at sea, is to be carried into the captor's own port or fleet, and 
 that it cannot be until then considered as fully his. 
 
 What then, if it be recaptured before that time? Then the 
 former owner will have a right to claim his property, as the 
 property has neither vested in the captor nor in the recaptor; 
 I say the former owner, because there has been an interme- 
 diate possession of some kind. But shall the owner claim his 
 property from the recaptor, without paying him any salvage or 
 reward for the recapture? without any remuneration for his 
 
 * Non omnium, qu<e a majoribus constituta sunt, ratio reddi fotcst. A reason 
 cannot lie given for every law which our ancestors have established. Dig. 
 1, 1. tit. 3. 1. 20: ' T. 
 
 f See note, p. 38.
 
 . 
 
 42 TREATISE ON THE LAW OF WAR. 
 
 labour and expense in and about the said recapture? this, 
 equity, the supreme law of nations, will not permit. It requires 
 that a salvage, premium, reward, something, in short, by what- 
 soever name it may be called, should be given. The recaptor 
 has saved the ship and goods, which otherwise would have 
 been lost to the owner, and why should he have exposed 
 himself to danger without any hope of reward? why should he 
 have fought for the property of another as if it were his own? 
 why should he have employed his arms and his men ID no 
 purpose whatever? He has beneficially managed the business 
 of the owner, and he is entitled for his labour and expenses to 
 the action negotiornm g-estorum.* I do not know of any other 
 action in the Roman law proper for the recaptor; if the thing 
 is to be decided by the rules of the Roman jurisprudence, for 
 this action is the only proper one when a reward is sued for, 
 either for work and labour done or for money laid out. But 
 upon what law or principle it has been thought proper to give 
 to the recaptor a part of the thing retaken, I do not myself 
 understand; much less do I understand how that proportion 
 can be greater or less according to the quantity of time that 
 the thing taken has been in the hands of the enemy. What 
 have 24, 48 or 96 hours to do here? The greater or lesser 
 duration of the enemy's possession, when the thing taken has 
 not been carried into a place of afety, cannot, in my opinion, 
 give a greater or a less right. f 
 
 Wherefore, if the subject is to be considered according to the 
 rules of reason, every distinction of time is to be abolished, and 
 in lieu thereof is to be the proportioned value of the recaptor's 
 x<labour and expenses, taking into consideration the danger 
 that he has been exposed to, and the value of the things 
 ' saved. From all these considerations taken together, impar- 
 tial men are to settle and determine what reward he is enti- 
 tled to. Nor should the allowance be dealt with a sparing, but 
 
 " This action in the civil law is analogous to our general assumpxit founded 
 i>n an implkil contract, for work and labour done and money laid out and 
 expended. T. 
 
 j See the case r>f the Santa Cruz, 1 Rob. 44. Phllad. edit, in no;.- 7'.
 
 TREATISE ON THE LAW OF WAR. 43 
 
 with a liberal hand, in order to encourage the industry of re- 
 captors. For, is it to be of no consequence whether the recapture 
 hasJDeen made with great or little trouble or labour? whether 
 the recaptor has fought, bravely? whether he has expended a 
 great deal? whether the things saved are of great or of little 
 value? If it should be observed that the valuation of such things 
 is so uncertain that it might occasion a great deal of litigation, 
 I answer, that as the matter stands, there will not be less con- 
 troversy, and that there have often been great contestations 
 about the value of a ship and goods, and what ought to be de- 
 ducted from it,* before the true value thereof has been deter- 
 mined. 
 
 But afterwards, if you still chuse to give a part of the 
 thing saved, give it; not, indeed, in proportion to the time that 
 the prize has been in the possession of the enemy, but 
 to the labour employed upon it, as is usual in other cases 
 of salvage. Thus the Rhodian law has allowed a reward to 
 those who have saved property from shipwreck, varying ac- 
 cording to the degree of labour, as is said by Harmenopulus, 
 npo%. 1. 2. tit. 11. 18. agreeably to which I interpret the 
 reasonable salvage which Mary of Burgundy allowed to the 
 salvors of shipwrecked property, by her law made for Holland 
 and Zealand, on the 14th of November 1476. A proportion of 
 the thing saved from shipwreck was also allowed by the edict 
 which Philip II. on the 15th of May 1574 issued in the name 
 of William of Orange, which has been often since reenacted, 
 and lately, on the 2d of April 1676; but the salvor is allowed 
 there a greater proportion than is therein expressed, if he has 
 been at a greater labour and expense. I conceive that the 
 states of Holland had a view to this, when on the 22d of July 
 1677, they decreed a reasonable salvage to those who should 
 take up timbers floating down the rivers without any guard, 
 and deliver them up to the company of ship-builders at Dor- 
 drecht. Those laws do not distinguish, how long the things 
 shipwrecked, and the timbers found drifting may have been. 
 
 * In the United States, salvage is generally allowed on the gross value of 
 the property saved. T.
 
 44 TREATISE ON THE LAW OF WAR. 
 
 floating at the mercy of the sea, rivers and wind, as there is 
 no reason for that distinction, but left it to the arbitration of 
 impartial men, to determine the amount of the reward for the 
 labour and expenses. Nor do I think that any other rule 
 should be followed, with respect to ships and goods retaken 
 from the enemy. 
 
 Indeed, in the book called // Consolato del Mare, the point 
 is determined exactly as I have said; for there the recaptor 
 is ordered to restore the vessel and cargo to the former 
 owner, saving however, a salvage, which, in order to be just, 
 is to be liquidated in proportion to the labour and expense 
 employed in and about the recapture,* without making 
 any distinction about the time that the vessel and cargo have 
 been in the possession of the enemy. It is very properly 
 added in the same book, that this restitution only takes place 
 when the ship has not yet been carried into a place of 
 safety, but that if it has been so carried, the property having 
 thus clearly vested in the enemy, if the ship and goods are 
 afterwards retaken, they belong entirely to the recaptor.f 
 Which agrees perfectly with the doctrine that I have con- 
 tended for in this chapter. I wish that all the principles 
 / '"which are contained in that farrago of nautical laws were 
 equally correct; but every thing that is there is not so sound. 
 
 j 
 * Dando a quelli che a i detti nimici tolta haveranno, IJEVERAGGIO conve- 
 
 nUnte, secondo la fatica che ne hai-eranno havuta, e secondo il danno che ne 
 haveranno sofferto. Giving to the recaptors a sufficient beverage or drink- 
 mor.ey, in proportion to their labour and damage suffered. // Conaol. C..287. 
 In the late French 'translation by M. Boucher, it is c. 290. 1136. T. 
 
 ^Anzi debba essere tutta di loro. II Consol. Ibid. Fr. Transl. Ibid. 1138. T
 
 TREATISE ON T1& LAW OF WAR, 45 
 
 CHAPTER VI. 
 
 Of the Possession of Immovables taken in War. 
 
 Til 7"E must now consider, for the subject is worthy of it, 
 
 * * how far extends the possession of immovables ac- 
 quired in war, and the property arising out of such posses- 
 sion. Grotius* simply says, that every kind of possession 
 is not sufficient, but that it must be a firm possession, which he 
 explains thus: " as if a country is so provided with permanent 
 fortifications, that the adverse party cannot enter it openly 
 without first making himself master of them by force." 
 What then if the fortified town is taken; shall the country 
 be considered as taken also, and for how long? Grotius 
 decides absolutely nothing about this, and yet he often 
 proposes this question when he speaks of the capture and 
 occupation of places. An example will make the thing more 
 clear. The French had taken Casaland Turin in Piedmont; a 
 truce was afterwards made, during which it was agreed that 
 each party should keep what he had taken on the principle of 
 uti possidetis. A question was made about the territory and 
 villages which owed services and duties to the cities which 
 were held by the French. 
 
 There were lawyers who decided that question against the 
 French, on the ground that the law of nations requires 
 actual possession, acquired by natural means, and that the 
 part occupied does not draw along with it the part not oc- 
 cupied. Therefore they were of opinion that the obligation of 
 those inhabitants did not enure to the use of the French, as 
 the citizens themselves submitted to their dominion against 
 their will. It is thus contended by Petrinus Bellns,] with 
 whom I do not know whether Zouch agrees.:): But I think 
 Bellus was mistaken: he was certainly so in the case of 
 
 * De Jure B. ac P. 1. 3. c. 6. 4. f De re miHtari, part 5. t. 3. n. 7. 
 
 * De Jure Fee. part 2. 9. Q; 48.
 
 
 TREATISE ON THE LAW OF WAR. 
 
 a truce Jike the present, because the general words utiposside- 
 tls embrace an implied as well as an actual possession. That 
 implied possession consisted in the performing and receiving 
 services and duties, which were usually rendered only to the 
 master; but what actual possession is will be seen from what 
 I am about to say. 
 
 Reason, therefore, is to point out to us, what may be pro- 
 perly called a possession of immovables, taken in war, which 
 is that the whole is occupied and possessed, if such has been 
 the intention of the captor; and thus Paul defines it in 1. 3. 1. 
 Jf. de Acquir. vel amitt. rer. pass. That this is not a principle 
 merely of civil law, but also of natural law, the thing itself, 
 and custom which is an excellent teacher, abundantly demon- 
 strate. Possession extends to every thing that is occupied, 
 and what is occupied is placed within our power by the law 
 of nature; but even that is considered as occupied, which 
 is not touched on all sides with our hands or feet, if the 
 occupant so chuses, or the nature of the case requires it, as is 
 the case with lands. On another principle it would not be 
 easy to say what is possessed or occupied, for if every thing is 
 to be touched, it is not even sufficient to touch the surface of 
 the land; it will be not only necessary to walk round, but to 
 dig into every field. 
 
 But although it be true, that a part being taken, the whole 
 is taken, when the taking is made with that view or intent, 
 yet it will not otherwise obtain, than if no other person pos- 
 sesses another part of the thing in question. For if another 
 possesses a part of the same whole, he would by the same 
 reason possess the whole. This cannot be said with propriety, 
 for as Paulus very truly says in D. 1. 3. 5. two persons can- 
 not at the same time possess the whole of the same thing, be- 
 cause the ownership of one would exclude the ownership of 
 the other. If then one is in possession of a thing, and another 
 takes a part of it which the other does not corporally oc- 
 cupy, he has taken nothing but what he has occupied by 
 natural means, nor can the thing be possessed pro rata^ 
 in proportion to the parts which each actually occupies, 
 because the possession of the first occupant is paramount, and
 
 TREATISE ON THE LAW OF WAR. 47 
 
 cannot be excluded by another, which is only similar, each of 
 them having the same force and effect as the other. And the 
 latter occupant has done away what is called the legal 
 possession of the other in that part which he detains, for no 
 . other reason than because he possesses it by natural means; 
 for the natural possession has taken away the legal one. It 
 is^ the same thing that Celsus says in 1.18. 4. Jf. Eod. " Si 
 cum magna vi ingressus est exercitus, earn tantum mod 
 partem quam intraverit obtinet. If an army has entered a 
 territory with great force, it has possession only of that part of 
 the country which it has entered upon." When he says, -with 
 great force, he means that there was a resistance made, and 
 that there were those who defended by force the possession of 
 the first owners. An army, therefore, does not further occupy 
 a country than if has compelled the opposite army to recede. 
 , Perhaps Paulus is to be thus understood, in D. 1. 3. 1. when 
 he says that a part being taken with intent to take the whole, 
 the whole is occupied, but to a certain extent only, usque ad 
 terminum; which I take to mean, so far as to that part which 
 another possesses, whether it be a neighbour on an adjoining 
 land, or some other person on the very land which is contended 
 for. 
 
 Hence it is not difficult to discern what may be considered 
 as properly occupied in an occupied country. The metro- 
 politan law of itself has nothing to do with this case, for 
 it is a municipal law which the sovereign may establish 
 wherever he pleases. If so, it is easily understood that if from, 
 the occupation of a strong place, dominion is exercised over 
 the whole country, yet by that occupation, the victor is not 
 considered in possession of those cities, walled towns and for- 
 tresses which the sovereign still detains, but all these things are 
 to be judged of by the fact itself of occupation and possession. 
 
 According to this principle we say, that if a part of a coun- 
 try be occupied, the whole is considered as occupied, if the van- 
 quished party has retained no other part of it; but if he has, then 
 nothing is occupied, but what the victor has taken by force 
 from the vanquished, and is actually in possession of. But in 
 regard to several distinct countries under the dominion of the
 
 48 TREATISE ON THE LAW OF WAR. 
 
 same prince, it may be asked, whether the same distinction can 
 apply, which is used with regard to contiguous private estates? 
 If Titius is the owner of three-contiguous plantations, A, B 
 and C, and Gains occupies part of the plantation A, he will 
 be considered as occupying the whole of it, but not the planta- 
 tions B and C. For when we possess an estate, our possession 
 goes as far as its extent, or its boundaries, but no fartherjyrm- 
 do enim possesso, ad terminum auidem, sed ad terminum dun- 
 taxat, neque ultra possidemits. D. 1. 3. ^'ff- de Acquir. vel 
 amitt. rer.poss. He who has entered on part of the plantation 
 A, is not supposed to have entered upon it with any other in- 
 tent than to possess himself of the whole of that of which he 
 has occupied a part, but he is not considered as having thought 
 in the least of the manor B or the manor C. When we oc- 
 cupy a part of a whole which is distinguished from all other 
 things, that distinction marks the boundaries of our posses- 
 sion, whether it be a house, a piece of land, a store or ware- 
 house, or any other thing which comes under the denomina- 
 tion of immovable property. 
 
 But in my opinion there is another principle as to immo- 
 vables which are occupied by right of conquest. 
 
 The intention of the conqueror is not merely to invade one 
 district, but the whole of the hostile empire, and to make his 
 own all the countries belonging to it. Nor is there here any 
 boundary, but that part of the country which the vanquished 
 still retains. If there is nothing that the conqueror cannot 
 possess, if he pleases, what hinders him from proceeding 
 on and actually possessing the whole? If no one district is re- 
 tained by the vanquished, the occupation of a single one by 
 the conqueror, nay, of the metropolis alone, will give him 
 possession of the whole empire. Here we must acknowledge 
 the truth of what the ambassador of the emperor Justinian 
 said to Chosroes, king of Persia, according to Menander Pro- 
 tector, Hist. Byzant. torn. 1. p. 143. 'O y'p jtriroeecs 'HytjttonxS, 
 vZ f isx. 't%u TO ti7reeixe? Shall not he, who is the master of him 
 who commands, also be the master of what is subject to him? 
 But if the conquered party still retains something, it will not 
 be considered as a conquest of the whole of his dominions
 
 TREATISE ON THE LAW OF WAR. 49 
 
 that his metropolis has been taken and is occupied by force of 
 arms. 
 
 Those princes therefore have justly been laughed at, who 
 because they had taken Rome or Constantinople arrogated to 
 themselves the whole Roman empire, while other princes oc- 
 cupied several large parts of it. Of this kind was the arro- 
 gance of Belisarius, as related to us by Procopius, de BelloVan- 
 dal. 1. 2. c. 4.; for he, after Justinian had taken Carthage and 
 her king Gelimer, boasted publicly, that every thing belonged 
 to him which Gelimer possessed in Sicily. Here he was alto- 
 gether wrong, for the right which he had over Carthage and the 
 person of her king, could not transfer to him the possession of 
 what was in Sicily. Sicily defended itself by its own force, 
 and by taking the king, the whole of his dominions was not 
 taken. Actual occupation is necessary, or a cession, if it be 
 so agreed by the treaty of peace. 
 
 Let us now see what the states-general have decreed upon 
 this subject. When by the 3d section of the truce between the 
 archduke of Austria and the states-general of the 9th of April 
 1609, it was agreed that each should continue to possess what 
 he was in possession of at the time of the truce, and the arch- 
 duke had posted up his edicts in the territory of Kuyck, which 
 he occupied, the states-general on the 20th of August 1609 
 decreed, that that territory belonged to them, because they 
 possessed the town of Grave, to which it was subject, .and 
 prohibited all others from exercising jurisdiction therein. 
 When also the states-general had taken some fortresses in 
 the Overmaze, and the Spaniards had nevertheless prohibit- 
 ed the inhabitants from submitting themselves to the juris- 
 diction of the council of Brabant, sitting at the Hague, the 
 states, by way of retort, opposed that interdiction by their 
 edict of the 8th of March 1634. Again, when Boisleduc be- 
 longed to the states-general, and the Spaniards made great 
 disturbances respecting the territory thereof, the states 
 obviated them by various edicts, viz. of the 20th of Ja- 
 nuary and 3d of August 1630, 13th of May 1631, 20th of 
 June 1634, 2d of February and 2d of December 1636, and 
 again on the 24th of December 1642, in which edicts, of the
 
 50 TREATISE ON THE LAW OF WAR. 
 
 8th of March 1634, and 2d of February 1636, is also recited 
 the edict of the king of Spam of the 10th of July 1628, in 
 which that sovereign asserts, at great length, that the territory 
 subject to a town follows the conquest of the town itself. 
 The states availed themselves of the same principle, and 
 very properly too, because those are considered as being 
 in possession of a territory, who command there at their 
 pleasure. But if there is in that territory a fortress not yet oc- 
 cupied, so far as that fortress commands the territory, the pos- 
 session and dominion of the occupier of the remaining part of 
 the country does not take place. 
 
 If the principles which I have contended for are correct, 
 as indeed they appear to me, the council of Brabant, which 
 legislates at the Hague for those parts of Brabant which the 
 states have taken by the right of war, has justly enacted by its 
 edict of the 26th of October 1629, that the investiture of the 
 fiefs situate in the territory of Boisleduc, was to be asked of 
 them, and not of the council of Brabant, sitting at Brussels. 
 And it also appears, that the king of Spain had no right to 
 issue, as he did, a contrary edict on the 15th of November 1&%9, 
 as Aitzema relates in detail.* For, by the capture of Boisle- 
 duc, the whole adjacent territory belonged to the states- 
 general, and therefore they were the lords of the fiefs situated 
 there; as the conquered vassal owes fealty and services to the 
 conqueror, not to the conquered prince. 
 
 There is still less doubt, that if a province be ceded, all its 
 parts are ceded likewise. On this subject there is extant an 
 edict of the states-general, of the 22d of December 1610, con- 
 cerning Tzvent, a district of the province of Over TsseL 
 
 * Aitz. b. 9.
 
 TREATISE ON THE LAW OF WAR. 51 
 
 CHAPTER VII. 
 
 Of the Confiscation of the Enemy's Actions and Credits* 
 
 TF there are treaties between princes about taking away 
 their goods within a certain time in case war shall take 
 place, several of which treaties I have above mentioned, c. 2.; 
 it is true that they may remove their goods and effects as well 
 as their actions and credits. But if there are no such treaties, 
 or if the goods and actions are not taken away within a limited 
 time, it is asked, what is the law in that case? And surely, such 
 being the state of war, that enemies are on every legal principle 
 proscribed and despoiled of every thing, it stands to reason- 
 that everything belonging to the enemy, which is found in the \ 
 hostile country, changes its owner and belongs to thejfo<.* It is 
 besides customary in almost every declaration of war to pro- 
 claim that the goods of enemies, as well those found among us, 
 as those taken in war, shall be confiscated. 
 
 There are also now extant on this subject separate acts of 
 state, whether preceded or not by a declaration of war. The 
 prince of Orange, on the 25th of August 1572, inserted in 
 the form of government which he then made for Holland, 
 " that the goods of all those who acted publicly as his ene- 
 mies, should be immediately registered by the magistrate of 
 the place where they were found, and their rents and profits 
 should be taken for the benefit of the commonwealth." I 
 understand this to apply to real estates, which it is usual to 
 register, that the rents and profits in time of war may go to 
 the public. If we follow the strict law of war, even immo- 
 vables may be sold, and their proceeds be lodged in the 
 public treasury, as is done with movables; but throughout 
 almost all Europe, immovables are only registered, that the 
 treasury may receive during the war their rents and profits. 
 
 * As we make use of the words fiscal, confiscate, confiscation, why should 
 we not adopt in America the \vovd. fisk, from 'the Latin fiscus, which is the 
 root of all those derivatives? T.
 
 52 TREATISE ON THE LAW OF WAR. 
 
 At the termination of the war, the immovables themselves are 
 by treaty restored to their former owners. 
 
 On the 2d of April 1599, the states-general again issued an 
 edict with regard to all kinds of enemy's property, wherever 
 found, which is in these words: " We declare lawful prize all 
 persons and goods situate or being under the jurisdiction of 
 the king of Spain, wherever the same may be taken." There 
 exists also a letter from the states-general to the court of 
 Holland dated the 25th of November 1672, by which they are 
 simply ordered to detain and confiscate the goods of those who 
 reside among the enemies, on which there issued an edict 
 of the court of Holland of the same day, declaring that the 
 goods could not be restored to their owners after the date 
 thereof. I am not now inquiring whether this be agreeable to 
 the treaty made in the year 1662, between the states-general 
 and France. But as estates of inheritance are principally to 
 be included under the denomination of goods, (bond)* it 
 is clear that an enemy cannot acquire such an estate situate 
 in our country, even though it came to him by succession 
 or by will. Agreeably to this principle, when in the year 
 1695, a person died intestate in Holland, whose next of kin 
 and heirs at law were in France, I remember that the inhe- 
 ritance was confiscated. 
 
 As the edicts which I have recited speak in general terms, 
 they are to be taken to apply to all kinds of goods, whether 
 corporeal or incorporeal. Of incorporeal goods, however, such 
 as actions and credits, I see that doubts exist, and that the 
 states-general themselves have doubted, f nay, and have some- 
 
 * At the civil law the word bona includes every kind of property, real, 
 personal and mixed, but chiefly, as our author says, applies to real estates, 
 chattels being generally distinguished by the words effects, movables, &c. 
 The English civilians translate the word bona by goods, which we employ 
 here in the same sense, though very different from that of the common 
 law. T. 
 
 f Not only doubts have been entertained on this subject in the United 
 States and Great Britain, but the two governments by the treaty which was 
 made between them in 1794 have expressly recognised the opposite prin- 
 ciple. By the tenth article of that treaty, it is stipulated " that neither the 
 debts due from individuals of the one nation to individuals of the other, nor 
 shares, nor moneys which they may have in the public funds or in the public
 
 TREATISE ON THE LAW OF WAR. 53 
 
 times acted in contradiction to the principle. When the king 
 of France and the bishops of Cologne and Munster, in the 
 year 1673, confiscated even actions,* and gave orders to call 
 in what their subjects owed to the citizens of the United 
 Provinces, the states-general, by their edict of the 6th of July 
 1673, reprobated it, and decreed that payment could not be 
 made but to the true creditor, and that they would not ratify 
 such an exaction, whether made by force or by consent. But 
 in fact it appears that by the common lawf actions may be 
 confiscated, for the same reason that corporeal goods may. 
 Actions and credits are by the law of nations not less under 
 our dominion than other goods; why, therefore, might we 
 pursue these and not those by the law of war? and if there is 
 no ground here for a rational distinction, reason alone supports 
 the principle of the common law. But examples and authori- 
 ties are not wanting in support of it. 
 
 It appears from Polybius, Excerpt. Legat. c. 35. n. 4., 
 that it was agreed between the Romans and Antiochus, that 
 actions, as well as every thing else which had been confis- 
 cated during the war, should be restored. Therefore it 
 follows, that actions had been confiscated on both sides. 
 That the kings of France and Spain also exercised this 
 right towards each other, appears by the twenty-second 
 article of the treaty of peace made between them, on the 
 17th of September 1678, for by that article it is stipulated 
 that credits which have been actually confiscated shall not 
 be restored. And the king of Denmark, having declared 
 war against the Swedes, did on the 9th of March 1676 issue 
 an edict ordering that the goods of Swedes within the Da- 
 rn private banks, shall ever in any event of war or national differences be 
 sequestered or confiscated, it being unjust and impolitic that debts and 
 engagements contracted and made by individuals, having confidence in each 
 other and in their respective governments, should ever be destroyed or 
 impaired by national authority on account of national differences and dis- 
 contents." T. 
 
 * Here we again use the technical language of the civil law. The common 
 law term is things, or chases in action. T. 
 
 f The civil law and the law of nations are very frequently styled " the 
 common law" (jus commune) by writers on the continent of Europe. They 
 are, in fact, in many respects, the common law of the civilized world. T.
 
 54 TREATISE ON THE LAW OF WAR. 
 
 nish empire, and all the debts due to Swedes, should be 
 brought within six weeks into the public treasury, there to be 
 confiscated, under a penalty of double the value and discre- 
 tionary punishment against those who should not obey. The 
 king of Denmark had decreed something similar against the 
 English in 1667, as is related by Aitzema.* 
 
 Nor does it appear that the Dutch have always been averse 
 to that doctrine from the edict of the 18th of July 1536, 
 from that of Philip II. against the French of the 27th of 
 March 1556, and that of the states of Holland of the 29th 
 of January 1591. There is also an edict which the prince 
 of Orange and the court of Holland issued on the 7th 
 of December 1577, under the assumed name of Philip II. 
 king of Spain, by which they ordered the confiscation of all 
 the movable and immovable property, and of all the actions 
 and credits, not only of those who had gone over to Don John 
 of Austria, but of all their enemies. The states-general also, 
 on the 4th of June 1584, declared those of Bruges and Vnje, 
 who had gone over to the Spaniards, to be their enemies, and 
 ordered all their goods, actions and credits, public as well as 
 private, to be confiscated. And afterwards, when those of 
 Venloo had also gone over to the Spaniards, the earl of Lei- 
 cester, by his edict of the 9th of July 1586, declared them 
 guilty of the crime of high treason, and ordered all their 
 goods, movable and immovable, and all their actions and 
 credits, to be confiscated. Nor must it be believed that these 
 things were decreed concerning those of Bruges, Vrye, and 
 Venloo, merely because they were not so much enemies as 
 they were traitors, as they had previously bound themselves 
 by the confederation of Utrecht; for I must observe, that the 
 penalties of the edict of the 4th of June 1584 are expressly 
 applied to all who hold themselves to be our adversaries, in 
 whatever manner it may be, precisely as in the abovemen- 
 tioned edict of the 7th of December 1577, traitors and enemies 
 are classed together, as to that particular purpose. 
 
 Under this head are also to be noted the decrees of the states- 
 general of the 2d, and of the states of Holland of the 29th of 
 
 * Aitz. b. 47.
 
 TREATISE ON THE LAW OF WAR. 55 
 
 October 1590, in both of which the following sentence is con- 
 tained: " That those who come into these provinces out of the 
 enemy's territory, although provided with proper passports, 
 shall not be qualified to bring any personal or real action, 
 either in the petitory or in the possessory, but shall be dis- 
 missed from court, in order that hostility against the ene- 
 mies, and the confiscation of their goods, rights and actions, 
 may subsist in their fullest extent." By these decrees they are 
 not permitted to bring even personal actions, and the reason 
 publicly given for it clearly shews that they cannot do it, 
 because not only the goods of enemies but their actions are 
 liable to confiscation. And when once the king of France had 
 ordered the goods of Dutch subjects to be seized, the states 
 of Holland, on the 26th of April 1657, ordered the same thing 
 with regard to the goods of French subjects, and prohibited 
 any body from paying to them, on pain of being compelled 
 to pay the amount a second time, for the indemnity of the 
 Dutch subjects who had suffered by the seizure of their 
 goods in France, and of paying moreover half the amount of 
 the debt by way of punishment, and they ordered the goods 
 and credits of Frenchmen to be brought under a penalty to 
 certain officers appointed in each town for that purpose. 
 Wherefore, if the subject of a prince who has confiscated the (tf 
 credits of his enemies, should pay to his government what he 
 owed to the enemy, it has been very properly held that he is 
 discharged. 
 
 These things, however, do not take place when war is 
 carried on with so much mildness that commerce is permitted 
 on both sides: for there cannot be any commerce without 
 contracts, contracts without actions, actions without courts 
 of justice, nor courts of justice without parties to liti- 
 gate before them. Who will sell and carry goods to an enemy 
 without the hope of recovering the price of them? and what 
 hope can there be of recovering that price, if one cannot judi- 
 cially compel payment from his enemy purchaser? Although, 
 therefore, an enemy has no persona standi in jud'icio,* as it is 
 
 * No right to be heard as plaintiff in courts of justice. T.
 
 56 TREATISE ON THE LAW OF WAR. 
 
 simply expressed in the decrees of the 2d and 29th of October 
 1590, and although it has been thus held and adjudged in 
 this country in various instances, yet the case of commerce 
 is properly excepted, that is to say, when there is a mutual 
 liberty of trade; for if there is not, actions, though arising 
 out of commerce, may justly be confiscated. But is the 
 case of commerce to be so'distinguished from all other cases, 
 that in this we grant, and in others we refuse to the enemy 
 the persona standi in judiciof It has undoubtedly been so 
 adjudged, and if the distinction is proper here, it must also 
 obtain as to the confiscation of actions. But if the enemy be 
 once permitted to bring actions, it is difficult to distinguish 
 from what causes they arise, nor have I been able to observe, 
 that this distinction has ever been carried into practice. 
 
 Moreover, if you do not permit your enemy to bring 
 actions, neither can you with justice suffer them to be brought 
 against your enemy, if perchance he should tarry within your 
 territory, and thus the decree of our supreme senate, of the 
 18th of September 1590, confirming the sentence of the infe- 
 rior judge and of the court of Holland is unjust, to wit, that 
 an enemy, who had come with a safe conduct into this country, 
 might be arrested and held to bail in a civil action. For it is 
 manifestly unjust to hinder an enemy from bringing actions, 
 (as he is plainly forbidden by the said decrees of the 2d and 
 29th of October 1590,) and not to allow him the same privi- 
 lege. Whatever right one arrogates to himself by the law of 
 war, he must also allow to his enemy. 
 
 What I have said about the legality of confiscating actions, 
 obtains only in case the prince has really made his subjects 
 pay what they owed to the subjects of his enemies. If he has 
 exacted it, they have lawfully paid, if not, when the peace 
 takes place, the former right of the preditor revives, because 
 the occupation which is had by war consists more in fact than 
 in law. Therefore credits not exacted are in some manner 
 suspended during the war, but at the peace they return to 
 their former owners by a kind of postliminy. Upon this prin- 
 ciple it has been agreed among almost all nations, that actions 
 which have been confiscated during the war, and have been
 
 TREATISE ON THE LAW OF WAR. 57 
 
 called in by the sovereign, are considered at the peace as lost, 
 and are for ever extinct; but if they have not been exacted 
 they revive and return to the real creditors. It was thus 
 agreed by the fifth article of the treaty of peace betwe en.fr t*/<?- 
 rick III. king of Denmark and Charles II. king of England, 
 of the 31st of July 1667, the thirty-seventh article of the 
 treaty of peace between the kings of Spain and England^ of 
 the 21st of September 1667, and the twenty-second article of 
 the treaty of peace between the kings of France and Spain of 
 the 17th of September 1678, which twenty-second article I 
 have mentioned above in this chapter, in order to establish 
 what is proved by the said 5th and 37th articles, that actions 
 have not less than other goods of the enemy been confiscated 
 in time of war, and have often been exacted.* 
 
 Let it not, however, be supposed, that it is only true of 
 actions that they are not condemned if so jure; for other things 
 also, belonging to the enemy, may be concealed and escape 
 condemnation. So that it has been very properly held that 
 those things which we had in the enemy's country before the 
 war began, and which during the war have been concealed, 
 and therefore not condemned, if they are afterwards retaken 
 by our countrymen, do not become the property of the re- 
 captors, but return to the former owners. 
 
 * Vattel, though he acknowledges the legality of confiscating in war the 
 enemy's actions and credits, yet tells us that a more liberal practice has 
 generally prevailed in modern times. " Mais aujourd'/mi, I' wantage et la 
 stirett du commerce ont engage" tons les souverains de r Europe a se relacher de 
 cette rigueur. But at this day, the advantage and security of commerce have 
 induced all the sovereigns if Europe to relax from this severity." Vatt. Lata of 
 Nat. b. 3. c. 5. 77- T
 
 58 TREATISE ON THE LAW OF WAR. 
 
 w 
 
 CHAPTER VIII. 
 
 Of Hostilities in a neutral Port or Territory. 
 
 E only exercise the rights of war in our own territory, 
 in the enemy's, or in a territory which belongs to 
 no one. If we take the enemy in our own territory, and he 
 has come to it without a safe conduct, there is nothing 
 that prohibits our treating him in a hostile manner. To enter 
 the territory of an enemy, and there to make captures, is 
 permitted by the law of war. The same may lawfully be done 
 on the high seas, as being the territory of no one. But he who 
 commits hostilities on the territory of a friend to both parties, 
 makes war upon the sovereign who governs there, and who 
 by his laws coerces every violence, by whomsoever it may be 
 committed. Therefore the Carthaginians, though with a 
 superior naval force, did not dare to attack the Romans in a 
 port of the king of Nwnidia, as Grothis (after Livy*) relates 
 in 1. 3., De Jur. Bell, ac Pac. c. 4. 8. n. 2., and Zouch^ 
 &e Jur. Fee. part 2. 9. Q. 7., transcribes it out of Grotius. 
 Zouch there states some contrary arguments, but Grotius 
 had already mentioned and refuted them. 
 
 But as all the publicists (without any exception that I know 
 of) prohibit the use of force in the dominions of another, it 
 deserves to be considered, whether the usage of nations and 
 the edicts of our princes! an d states^ are conformable to 
 this opinion, and whether on this subject the right to pursue 
 ought to be distinguished from the right to attack? To bo gin 
 with the princes. Philip II. king of Spaing in the nautical laws 
 
 * Lit, 1. 28. c. 17. 
 
 f The counts of Holland, Who were the sovereigns of that province before 
 the Dutch revolution. T. 
 
 $ The states -general of the United Netherlands, and the provincial states 
 of Holland. T. 
 
 Who was also count of Holland, and sovereign under different titles of 
 the seventeen provinces of the Netherlands. T.
 
 TREATISE ON THE LAW OF WAR. 59 
 
 which he gave to the Belgians on the last day of October 1563, 
 (tit. 1. 27.) ordered, on pain of death, that no violence 
 should be done on the sea, by reason of war or for any other 
 cause, on his subjects or allies, or on foreigners, within sight 
 from land or from a port. He therefore understood the 
 dominion of the continent to be extended as far as the sight 
 can reach from the shore, and there are authors who are of 
 that opinion. But I have shewn this to be too vague, in 
 the second chapter of my Dissertation de Dommio Marts, 
 being of opinion that the dominion of land ends where 
 the power of arms terminates. And that the states-general 
 and the states of Holland were of the same* opinion, I think I 
 have sufficiently proved by the two decrees made concerning 
 the salute at sea, quoted in the said chapter 2, and also in 
 chapter 4.* 
 
 Certainly it is by no means lawful to attack or take an 
 enemy in the port of a neutral who is in amity with both 
 parties. If it be done, it is the duty of the neutral state to 
 cause the- thing taken to be restored, either at its own expense 
 or at the expense of the injured party. That it should be done 
 at the expense of the latter has been agreed by the twenty- 
 second article of the treaty of peace between the common- 
 wealth of England and the states-general of the 5th of April 
 1654, the twenty-first article of the treaty of peace between 
 the king of England and the states-general of the 14th of 
 September 1662 and again by the 29th article of the treaty of 
 peace between the same powers of the 31st of July 1667. The 
 same is stipulated by the forty-eighth article of the commer- 
 cial treaty between the king of France and the states-general 
 
 f The states of Holland decreed on the 3d of January 1671, that theifr 
 ships of war should salute those of other sovereigns on their coasts within 
 reach of the cannon of batteries and forts, precisely in such manner as the 
 government of the country should require, leaving 1 it entirely to its discre- 
 tion to return or not the salute; adding, that every government is sovereign 
 within its own jurisdiction, and every foreigner is a subject there. Bynk. de 
 Dom. Mar. c. 2. On the 16th of May 1670 the same states decreed that the 
 Danish fort of Croneborg situate on the shores of the sound in the Baltic sea, 
 should be saluted in such manner as the king of Denmark should require. 
 Ibid. c. 4. T.
 
 60 TREATISE ON THE LAW OF WAR. 
 
 of the 27th April 1662, but there is no mention made therein 
 of the expenses being to be borne by the injured party, which 
 appears to me to be very unjust, as it is the duty of the sove- 
 v ' reign of the territory to revenge the injury done to himself; for 
 it is an injury done to him to violate a port which is equally 
 open to all his friends. And what if he who committed the vio- 
 lence goes away immediately? Is the individual, whose vessel, 
 perhaps, has been taken, to make war at his own expense? 
 Therefore the mention of the expense is properly omitted in 
 the thirty-fifth article of the treaty of commerce which was 
 made between the same powers on the 10th of August 1678, 
 iu the fortieth article of the treaty of commerce between the 
 same of the 20th of September 1697, and again in the thirty- 
 ninth article of the treaty of commerce between the same of 
 the llth of April 1713, for later treaties are generally without 
 any further examination copied from the former ones, as we 
 have seen just now to have been the case with the English. 
 Those articles of treaties between France and the states- 
 general only stipulate that the sovereign of the port, bay or 
 river in which a prize shall be made from a friend, shall use 
 his utmost endeavours that the captured property be fairly 
 and justly restored. If it be the duty of the sovereign to use 
 his utmost endeavours to effect that purpose, it follows that 
 he must do it at his own expense, nay, by going to war, if 
 other means are not sufficient. Such is the law which is ob- 
 served among all nations, and there is no other reason for it 
 than that it is not lawful to commit violence within the terri- 
 tory of another, and that ports, bays,* and rivers, are also 
 within the territory of the sovereign of the country. Thus the 
 grand duke of Tuscany, in the year 1695, caused the French, 
 
 * In the year 1793 the British, ship Grange was captured by the French 
 frigate L" Ambuscade, in the waters of the bay of Delaware, and brought 
 into the port of Philadelphia, to which she was bound. The British minister 
 demanded her restitution of the government of the United States. In vain 
 did the French minister, M Ternant, allege that the bay of Delaware was 
 an open sea, not subject to the exclusive jurisdiction of the American 
 government. His arguments had no effect, and the Grange was very pro- 
 perly restored. T
 
 TREATISE ON THE LAW OF WAR. 61 
 
 who had taken near the port of Leghorn a ship of the powers 
 allied against France, who were friends to the grand duke, 
 and carried her into that port, to restore her immediately; for, 
 as I have said, the sea which is near to the ports of a sovereign 
 is a part of his territory. These principles may easily be ap- 
 plied to the following cases: 
 
 In the year 1 639, while admiral van Tromp was blockading in 
 the Downs the fleet of the Spaniards, who were in amity with 
 England, the states-general, on the 21st and 30th of September 
 1639, issued decrees by which they ordered him " to destroy 
 the Spanish fleet, without paying any regard to the harbours, 
 roads, or bays of the kingdoms where it might be found 
 even though the English should make resistance," and the 
 admiral immediately carried that order into execution, and 
 was praised and approved for it by the states-general, as is 
 commemorated by Aitzema in various places.* 
 
 This can hardly be defended, neither can the conduct of 
 the English, who, on the 12th of August 1665, took some 
 ships of our East India company, in the port of Bergen, in 
 Norway,] not without great indignation in the Danes, who 
 repelled the English with all their might. In order, however, 
 that the case of van Tromp may not be considered as too out- 
 rageous, two things are to be attended to; the one, that the 
 English, in the year 1627, had taken out of Holland a ship of 
 the king of France, then at war with England, but in amity 
 with the states-general 4 the other, that the Spaniards them- 
 selves, in the year 1631, were charged with having committed 
 hostilities against the ships of the states-general, in the ports 
 of the king of Denmark, then a common friend to both, as I 
 read in Aitzema.^ Otherwise, if nothing can be charged that 
 gives just cause to exercise the right of retaliation,^ it is ma- 
 nifestly unjust to attack an enemy in the port of a common 
 friend. And thus the states-general decreed in the year 
 
 * Aitz. 1. 19. f Ibid. 1. 45, 6, 7 * Ibid. 1. 7. 9. 19. 20. Ibid. 1. 11. 
 
 If But see page 33, where our author justly contends that retaliation is 
 only to be exercised directly against the enemy, and never through the 
 injury of a friend. T.
 
 62 TREATISE ON THE LAW OF WAR. 
 
 1623,* on a memorial of the English ambassador. The ships 
 of the states-general had committed hostilities against the 
 ships of England, in the river Elbe, a neutral river. Great 
 complaints were made on this subject, not only by the English, 
 but by the Hamburghers, and various ambassadors of the 
 Germanic empire.f As to the complaints of the English, 
 they could easily have been silenced, by reminding them of 
 what had happened the preceding year at Bergen, in Norway, 
 but it was not so with the others, for this aggression was 
 solely founded on the right of retaliation. Nor can it be 
 doubted that the French acted very unjustly, when in the year 
 1 693 they set fire to certain Dutch ships in the port of Lisbon, 
 at that time neutral, which the king of Portugal would not 
 either permit to be fired at nor to be taken away. This fact I 
 assert from my own memory. 
 
 It might be more doubted, whether it is lawful to pursue in 
 the heat of battle an enemy met with on the high seas, into a 
 neutral river, station, port or bay? The weight of argu- 
 ment is in favour of permitting it, on taking certain precau- 
 tions which I shall enumerate by and by. Such certainly was 
 the opinion of the states-general in the year 16234 when they 
 answered to the English ambassador that it was not lawful to 
 commit violence in a neutral port, " with this understanding, 
 however, that it was hoped his majesty would not take it 
 amiss, if any Dunkirkers were met with on the high seas, that 
 they might be pursued even along the king's coasts and into 
 the king's ports." The same opinion of the states-general 
 appears expressed in their decree of the 10th of October 1652, 
 but so, however, as is very properly added in it, that the 
 castles of neutrals be spared, even though violence should be 
 committed from them, and that the enemies also be spared, 
 if they should have already entered the neutral ports. Both of 
 these exceptions are right, for it is better to suffer within the 
 dominions of another than to act, and if we act, we are to be 
 very careful that the force used against our enemy shall not 
 
 * Aitz. 1. 3. f I bid - 1- 45, 6, 7. * Ibid. 1. 3. Aitz. 1. 32.
 
 TREATISE ON THE LAW OF WAR. 63 
 
 hurt our friend. If therefore two fleets fight in the open sea, 
 I do not pretend that the conqueror may not justly pursue the 
 conquered fleet, even though it should be driven to the terri- , 
 tory of a neutral. But I approve the direction of the states- 
 general in their decree of the 10th of October 1652, to abstain 
 from violence in the port itself, because violence could not be 
 done there without danger to the neutral. On this principle it 
 is not lawful to begin an attack on the sea near the land, within 
 shot of the cannon from the fortresses, but it is lawful to <' 
 continue an attack already commenced, and pursue the 
 enemy into a jurisdictional sea even close to the land, or into 
 a river, bay or creek, provided we spare the fortresses, though 
 they should assist the enemy, and provided there be no kind of 
 danger to our friends. 
 
 From facts which afterwards took place, the states-general 
 appear to have approved even thus much; for when in the 
 year 1654 a Dutch commander met an English vessel on the 
 high seas and pursued her flying into the port of Leghorn, 
 where he took her at the moment she was coming to anchor, 
 the grand duke of Tuscany complained of it to the states- 
 general, but we read that he complained in vain.* He, 
 however, afterwards took satisfaction, by condemning the 
 Dutch vessel that had made the pursuit and occasioned 
 the capture of the English one.f Again, when the Ostenders 
 had fired at a Dutch ship which was pursuing an English 
 vessel into the port of Ostend, the states-general:}: complained 
 of it to the court of Spain as of an illegal act, because the 
 Dutch ship had not fired at the English vessel in the port of 
 Ostend. But this reason is not good, except to aggravate the 
 injury done to the Ostenders, for it is not of any consequence 
 what kind of hostility you commit on your enemy, but whe- 
 ther you attack him in a hostile manner. Upon the whole, 
 it appears that the states-general approved both the pursuits 
 that I have mentioned, because the force was begun before. 
 
 and was only continued. 
 
 f 
 
 * Aitz. 1. 4. t Ibid * Aitz - l - 45
 
 $4 TREATISE ON THE LAW OF WAR. 
 
 The law is the same at land as it is on the sea; so that there 
 as well as here we may justly pursue an enemy flying from a 
 recent fight into the dominion of another. I think the states- 
 general acted in conformity with this opinion when they 
 decreed, in 1653,* that the Lorrain soldiers, who had ravaged 
 the Dutch dominions, might be pursued even into the domi- 
 nions of the king of Spain; but this cannot be defended, unless 
 it is a fresh pursuit from a conflict or devastation imme- 
 diately preceding. Otherwise, we may not any more make 
 use of the territory than of the port of a friend, to destroy 
 our enemy. And the states-general very properly, at the 
 request of the king of France, who was at peace with the king 
 of Spain, forbade upon pain of death, that any one should 
 commit hostilities against the Spaniards, in the dominions qf 
 the king of France.^ 
 
 The states-general also justly complained of the Spaniards, 
 when in the year 1666, those of Munster passed through their 
 territory to commit depredations in the dominions of the 
 states-general, and they demanded of Spain an indemnity 
 for the damage which they had suffered from them. This 
 demand} might have been just, if the Spaniards had wil- 
 lingly and knowingly "permitted those of Munster to pass 
 through their territory, in order to go and commit depreda- 
 tions; but it does not any where appear that the case was so. 
 If they knew it, it was their duty to prevent any hostility being 
 committed against their friends from their territory. 
 
 Therefore I do not approve of the conduct of those of 
 Wolffenbuttel, who, in the year 1 700, being, as is said, neutral, 
 permitted the Saxons to commit depredations from their terri- 
 tory on those of Lunenburg, and in like manner permitted the 
 allies of the Lunenburgers to kill the Saxons. At the utmost it 
 is lawful, after a recent fight, to pvirsue the flying enemy into 
 another's dominion; for the same reason that Philip II. king of 
 Spain, by the seventy-sixth section of his criminal edict of 1570, 
 gave permission to pursue a criminal immediately zr\<\Jlagrante 
 HeKcto into a territory not our own. But it is one thing to begin 
 
 * Aits. 1 3.3. t Aitz. L ?. 1 Aitz. 1. 46.
 
 TREATISE ON THE LAW OF WAR. 65 
 
 a hostility, and another to pursue the force while the thing is 
 yet warm. For it is not a new doctrine, that an act lawfully 
 begun may be continued where it would not have been lawful 
 to give it a beginning. In short, it is not lawful to begin force 
 within the territory of a neutral, but if begun out of that ter- 
 ritory, it is lawful to continue it there in the heat of action, 
 diimfervet opus. 
 
 Thus it seems that this distinction may be made and con- 
 tended for without absurdity. Yet I have never seen it 
 mentioned, either in the writings of the publicists or among 
 any of the European nations, the Dutch only excepted. 
 Nevertheless, reason both persuades and commands it, and 
 it is made use of in other analogous cases. If we attend to it, 
 we shall without difficulty decide on the following fact: A 
 Spanish ship pursued by a French ship (the two nations being 
 at war) fled into Torbay, was run aground there, and con- 
 cealed her cordage, tackle, sails, &c. in the houses of the 
 inhabitants. The French mariners went on shore and took 
 those articles from the houses they were in, and carried them 
 on board of their own ship. Now was it lawful for the French 
 to attack the houses of the English, and to take away the 
 things that were protected there? It could not be done without 
 injury to the English; therefore the king of England in the 
 year 1668 very properly ordered every thing to be restored, 
 and recommended the prosecution of the national injury to 
 his ambassador in France, as we are told by Aitzema.* The 
 same author relates! other complaints of the English for the 
 violation of their ports by the French, and informs us of the 
 damages which they paid therefor, but I shall not particu- 
 larise those cases; the reader will judge of them by attending 
 to the distinction which I have just now suggested, if he is 
 as satisfied with it as I am. 
 
 Aitz. 1. 48. f I^
 
 66 TREATISE ON THE LAW OF WAR. 
 
 CHAPTER IX. 
 
 Of Neutrality. 
 
 I CALL neutrals (non hastes*} those who take part with 
 neither of the belligerent powers, and who are not bound 
 to either by any alliance. If they are so bound, they are no 
 longer neutrals, but allies. Grotius has called them middle men, 
 (medii) 1. 3. De J. B. ac P. c. 9. Of these it is asked what is 
 lawful for them to do or not to do between two belligerent par- 
 ties? Every thing, perhaps it will be said, that it was lawful for 
 them to do or to omit doing when they were all at peace, for the 
 state of war does not seem to extend farther than to those who 
 are at war with each other. Does reason require, will you say, 
 that the enemies of our friends should be considered as our 
 own enemies? If not, why shall not our friends carry to their 
 friends, though they be our enemies, those things which they 
 were in the habit of carrying to them before? nay, arms, men, 
 and every thing else? It militates, indeed, against our own 
 advantage, but we are not considering what is advantageous, 
 but what is reasonable. The injury suffered is alone the cause 
 of the war, and it is evident that that injury has no effect be- 
 yond the person of him who has suffered it, except, that if he 
 is a prince, it extends also to all his subjects, but not to those 
 who arc not subject to his dominion. Whence it must follow, 
 that my friend's enemy is not my enemy, but that the friend- 
 ship between us subsists precisely as it did before the war. 
 
 It is remarkable that there are no words in the Latin language which 
 precisely answer to the English expressions, neutral, ntutrality; for neutralis, 
 ncutralitas, which are used by some modern writers, are barbarisms, 
 not to be met with in any classical author. These make use of the words 
 amid, medii, pacatl, which are very inadequate to express what we under- 
 stand by nt'utraU, and they have no substantive whatever (that we know of) 
 for neutrality. We shall not here inquire into the cause of this deficiency. 
 Such an inquiry would carry us too far, and docs not comport with tlx- 
 object of this work 7'.
 
 TREATISE ON THE LAW OF WAR. 57 
 
 We find that the counsellors of the states-general adopted 
 this doctrine, when on the 3d of March 1640 the states issued 
 an edict on their report, declaring that agreeably to ancient 
 custom and to the law of neutrality, it was lawful for neutrals 
 to fight for us or for our enemies as they might think proper. 
 And when the Spaniards, on the 30th of March 1639, issued 
 an edict declaring that if any of the people of Liege had enlisted 
 in the service of the states-general, they should return within 
 one month, having first taken an oath that they would no 
 more fight against Spain or the house of Austria, otherwise, 
 every pardon would be denied to them, a similar edict was 
 made in retaliation on the 3d of March 1640, in the name of 
 the states-general, of which I remember that it was to be in 
 force as long as that of Spain, which in the said edict of the 
 3d of March 164O was represented as an innovation, entirely 
 devoid of reason, and stigmatized in these words: " an un- 
 reasonable edict such novelty and unreasonableness so long- 
 as the Spaniards shall continue in force their unreasonable 
 edict ,"&c. Such also was the opinion of certain Dutch citizens, 
 expressed in the states of Holland, on the 26th of February 
 1684, when they urged the sending of auxiliary troops to the 
 Spaniards, to be employed against the French, which they 
 said could be done without injury to the peace then subsisting 
 with France, saha pace et amicitid cum Francis. 
 
 But certainly this opinion is not to be approved, if we speak 
 of those who are simply neutrals. It is their duty to be every 
 way careful not to intermeddle at all with the war, and not 
 to do more or less justice to one party than to the other. It 
 is the same thing that we read in Livy, b. 35. c. 48. Bella se 
 non interponant, let them not intermeddle with the war, that 
 is to say, in causa belli, as to what relates to the war, let 
 them not prefer one party to the other, and this is the only 
 proper conduct for neutrals. I do not know whether what 
 Grotius says, De J. B. ac P. c. 7. 3., will be satisfactory: 
 " The duty of those, says he, who abstain from the war, 
 is to do nothing by which he who supports an unjust cause 
 shall be made stronger, or whereby the motions of him 
 who carries on a just war may be impeded." If I judge
 
 6g TREATISE ON THE LAW OF WAR. 
 
 rightly, a neutral has nothing at all to do with the justice or 
 injustice of the war, it is not for him to sit as judge between 
 his friends who are at war with each other, and to give or 
 deny more or less to the one or to the other as he thinks that 
 their cause is more or less just or unjust. If I am a neutral, I 
 cannot be useful to one that I may hurt the other, alteri non 
 possum prodesse, ut alteri noceam. 
 
 But, will you say, may not I send to each of them whatever 
 I may think proper? It is what friendship requires. If one 
 power makes use of what I shall send him for the destruction of 
 the other, what is that to me? But you must not adopt such 
 an opinion: you must rather believe, that the enemies of our 
 friends are to be considered in two points of view; either as 
 our friends; or as the enemies of our friends. If we consider 
 them only as our friends, then it is proper to assist them 
 with advice, soldiers, arms, and all that they may want to 
 carry on the war. But inasmuch as they are the enemies of 
 our friends, it is not lawful for us to do so, because we 
 thus would prefer, in causa belli, one of them to the other; 
 and this the equality of friendship, which is first to be attended 
 to, forbids. It is more important to preserve friendship with, 
 both, than by favoring one of them in causa belli, thus tacitly 
 to renounce the friendship of the other. 
 
 And indeed, what I have just now said is not only con- 
 formable to reason, but to the usage admitted by almost all 
 nations. For although it be lawful for us to carry on trade 
 with the enemies of our friends, usage has so ordered it, as I 
 shall shew more at large in the next chapter, that we should 
 not assist either of them with those things by which the war 
 against our friends may be carried on. It is therefore un- 
 lawful to carry to either party those things which are neces- 
 sary in war, such as cannon, arms, and what is most essen- 
 tially useful, soldiers; nay, soldiers are positively excepted 
 by the treaties of various nations, and sometimes also ma- 
 terials for building ships, which might be used against our 
 friends, have been excepted. Provisions likewise are often
 
 TREATISE ON THE LAW OF WAR. 69 
 
 excepted, when the enemies are besieged by our friends, 
 or are otherwise pressed by famine.* The law has very 
 properly forbidden our supplying the enemy with any of 
 those things; for it would be, as it were, making war 
 against our friends. Therefore if we consider the bellige- 
 rents merely as our friends, we may lawfully carry on trade 
 with them, and carry to them any kind of merchandize, 
 but if we consider them as the enemies of our friends v 
 those merchandizes must be excepted, by means of which 
 they might injure those friends; and this reason is stronger 
 than the former, for in whatever manner we may assist one 
 against the other, we do interfere in the war, which is not 
 consistent with the duties of neutrality. From these reasons 
 may be seen which had the most justice on its side, the 
 edict of the Spaniards of the 3Oth of March 1639, or that of 
 the states-general of the 3d of March 1640, of both of which 
 I have spoken above. 
 
 Thus I have shortly laid down what has appeared to me to 
 be the duty of those powers which are not bound by any alli- 
 ance, but are in a state of perfect neutrality.! These I have 
 
 * It was probably on the principle which this vague word otherwise seems 
 to indicate, that the British government issued their provision order against 
 France, or rather against neutrals, on the 8th of yune, and signed their 
 convention with Russia, on the 25th of March 1793. If such is the strict law 
 of nations, we must again repeat what we have said in a former note, that 
 it is very nearly allied to barbarism. T. 
 
 ( There are two kinds of neutrality, which some writers distinguish by 
 tlie words perfect and imperfect, and others by absolute and qualified. Absolute 
 neutrality is when the neutral is bound to neither of the belligerents by a 
 treaty, the execution of which may affect the other in case of war, other- 
 wise, his neutrality is no longer absolute, but qualified. Thus if a neutral is 
 bound by treaty to admit the prizes of one party into his ports and not those 
 of the other. At the beginning of the war of 1793 the United States were 
 neutrals between France and Great Britain, and so our government declared 
 them to be by that proclamation which at the time excited so much sensa- 
 tion; our neutrality, however, was not absolute; it was qualified by the trea- 
 ties made with France in 1778, which, independent of the mutual guaranties 
 and eventual alliance, contained several articles that applied only to a time 
 of war. Between a qualified neutrality and an alliance there are many shades, 
 and it is often difficult to draw the line which separates the one from the 
 other. Our author, however, seems here to confound them together, and t* 
 consider every qualified neutrality as an alliance. T
 
 70 TREATISE ON THE LAW OF WAR. 
 
 simply called neutrals, in order to distinguish them from allies 
 and confederates. If the doctrine which I have contended for 
 be correct, I cannot agree to the principle which I have seen 
 advanced by many writers upon public law, to wit, that I may 
 and ought to support and assist that one of my friends whose 
 cause appears to me the best and the most just, not only by 
 supplying him with military stores, but by going openly to 
 war for him, if the case require it. This is not correct, for it is 
 never right to interfere with the business of others. When 
 neither of my friends has entered into any engagement with 
 me, why shall princes, who are independent, and masters of 
 their own actions, stand or fall by my judgment? It does not 
 belong to me to avenge the injuries of every sovereign; it 
 is sufficient if I avenge my own, and those of my allies. If, 
 however, the injury done to another is such, that I may fear 
 for myself, and there be no other hope left, but of being the 
 last devoured, it may perhaps be admitted, that I ought to 
 assist my oppressed friend; for it cannot be otherwise than 
 impious to make war upon a friend, while he continues to be 
 called such, and unless your friendship with him has been first 
 dissolved. 
 
 As to allies and confederates, the thing is quite different. 
 If two sovereigns with whom I am allied, are at war with 
 other nations, I shall administer to both the succours which I 
 am bound to give by treaty; but if they are at war with each 
 other, shall I assist both, or only one of them, and which of 
 them in preference? On this question the interpreters of the 
 law are at variance with each other, not less so than nations 
 themselves. Gentilis, De Jure Belli, 1. 3. c. 18. relates various 
 opinions, and adds his own; Grotius, De Jure Bell, ac P. 1. 
 2. c. 15. $ 13., and after him Zouch, De "Jure Fee. part 2. 
 4. Q. 28., lay down various distinctions. Certainly auxiliary 
 troops shall not be sent to each ally, even though they be due 
 by treaty; for it would be most absurd to send my soldiers to 
 both, that they may fight against each other. Those who hire 
 out their soldiers are often in that predicament, but this does 
 not belong to the present disquisition. As to myself, I think 
 that whether my allies are at war with a foreign nation, or 
 with each other, the only thing to be distinguished, is which
 
 TREATISE ON THE LAW OF WAR. 71 
 
 of the two has the most just cause of going to war. If they 
 are both engaged in a just war with foreigners, I shall render 
 to both that aid which I am bound by treaty to give: if only 
 one of them, I shall deny it to the other. If two of my allies 
 are at war with each other, I shall perform the obligation of 
 my treaty with respect to him who has the best cause, of 
 which I shall be myself the judge, as you will hear by and by. 
 And thus we may easily do without the opinions and distinc- 
 tions of others. 
 
 But what if I have promised succours to my ally and con- 
 federate, and he is at war with my friend? I think that pro- 
 mises are to be performed, and may be performed, because 
 allies constitute, as it were, one society to be defended by mu- 
 tual assistance. But here I must distinguish, whether my ally 
 has received an injury, or has inflicted one; if he has received 
 it, I shall perform my promise: if on the contrary he is the 
 aggressor, I shall not perform it, because I am not bound to 
 assist my ally in an unjust cause. But whether the cause be 
 just or unjust, is to be determined by the judgment of the par- 
 ty bound.* 
 
 I wish indeed, that what I have said of the justice and in- 
 justice of a cause, was clearly and roundly expressed in trea- 
 ties between nations; but those which I have seen simply ex- 
 press, that the one ally shall furnish to the other, when 
 attacked, so many naval or land forces, and no more is said. 
 But when the treaties say rvhen attacked, there can be no 
 other interpretation, but that succours are to be given to 
 that ally, who is unjustly made war upon; to him who is at- 
 tacked by, not to him who attacks the enemy. However, 
 I do not find that expression, when attacked, sufficiently 
 clear. For what if he who is attacked should have done an 
 injury to the other, and thus have afforded him a cause of 
 
 * Our author seems here to be at variance with himself. See the prece- 
 ding page and page 66, where he says that " a neutral has nothing at all 
 to do with the justice or injustice of the war," belli justitia NIHIL QJJIC- 
 ^_UAM pertinet ad communem amiciim. Much less does it concern an ally, ov 
 one who is bound by the solemn engagements of a treaty. See oil this subject 
 the able reasoning of Lord Hawkesbury, in his Discourse on the conduct of the 
 government of Great Britain in respect to neutral nations. Lond. edit. 1794, p. 
 68. T- 
 
 *
 
 72 TREATISE ON THE LAW OF WAR. 
 
 war? shall I send succours to that unjust ally? No, I shall not. 
 It should be said then, that to him who is unjustly attacked, 
 succours should be sent, as likewise to him who has not 
 afforded a cause of hostility, and whose fault or injury has 
 not begun the war. Although, however, it be not openly ex- 
 pressed, that exception is always tacitly understood in treaties, 
 which Grotius has proved, De Jure B. ac P. 1. 2. c. 15. 13. 
 n. 1., and I do not know any who differ from him.* 
 
 He who has promised succours, and he alone, as I have just 
 now said, judges also of the justice of the cause, and whether the 
 casusfcederis, as is commonly said, has taken place or not. For 
 the contracting parties are not in the habit of submitting that 
 to the decision of arbitrators; which indeed would be very 
 right, as treaties might not then be made sport of, as they now 
 are. Otherwise, who is there, who will not interpret treaties 
 as he may think will suit best his own interest? who will not 
 evade them by a false interpretation?! The ancient Greeks and 
 Romans, even in public matters, often left the justice or injus- 
 tice of their cause to be determined by others, as is proved by 
 many examples quoted by Grotius, 1. 2. c. 25. 4.; and it was 
 right to do so. But this part of the law of nations is now dis- 
 used, and hence hardly any thing now-a-days remains of trea- 
 ties but an empty name. 
 
 This is only applicable to treaties made before the break- 
 ing out of the war, by which supplies have been promised; for 
 in my opinion, after the beginning of the war, succours cannot 
 be properly promised or sent to either friend, and he who will 
 promise or send them to one, will violate his neutrality with 
 the other. 
 
 As to those states which are tributary to us or under our 
 protection, they constitute a kind of intermediate description 
 of states; for, from the very nature of protection, they are not 
 considered as enemies, nor also as- subjects, as they belong to 
 another prince. They may therefore assist their sovereign, 
 though he is our enemy, but not with arms and men, wherewith 
 
 See, however, the notes in the preceding page and page 75. T. 
 
 \ Does not this militate against our author's doctrine in the preceding 
 paragraph? See notes, p> 71. 75. T.
 
 
 
 TREATISE ON THE LAW OF WAR. 73 
 
 % - he may make war upon us. Therefore the counsellors of the 
 states-general, on the 17th of March 1641, and afterwards on 
 the 1 8th of July 1 746, very properly decreed, that those of 
 the territories of Luxemburg and Namur, who were under the 
 protection of the states, and generally, on the 14th of August 
 1645, that no neutral under our protection should fight for the 
 king of Spain, even though he had fought for him before, and 
 that no one, who had quitted the service should be recalled 
 
 ; into it. The same counsellors, on the 23d of February 1636, 
 issued an edict, that none of those who were under our 
 protection should assist the enemy's camps with horses, 
 wagons, or ships: and very properly, because, by acting thus, 
 they would have afforded assistance to the enemy. The law 
 is different, as to those things which are carried to an enemy, 
 for other purposes than for war; and therefore the states- 
 general, although they had before generally prohibited the ex- 
 portation of corn, decreed however, on the 23d of May 1631, 
 that those who were under our protection might carry their 
 corn to the Spaniards or to the United Dutch, as they might 
 think proper. For a neutral may lawfully carry corn to an 
 enemy, except in case of a siege or famine. 
 
 The states-general, by the third section of their edict of the 
 26th of September, 1590, prohibited the treating of neutrals, 
 their vessels and goods, in a hostile manner, even" though 
 
 ^ found in the enemy's territory, provided they were bound to 
 the United Provinces, or thence to other places. Yet there are 
 those who have written, as if the states-general on the 15th of 
 December 1672, had decreed by a general law, that even neu- 
 tral vessels, when coming from enemy's ports might be law- 
 fully condemned. But no credit is to be given to those 
 wretched scribblers; for the fact is that the edict of the 
 15th of December 1672, was a special one, and made merely 
 by way of retaliation for the condemnation of the Hamburg 
 ship, as I have before shewn in chapter 5.
 
 74 TREATISE ON THE LAW OF WAR. 
 
 CHAPTER X. 
 
 Of Contraband. 
 
 IT was formerly a capital crime at Rome to sell arms to* 
 the barbarians;* that is to say, it was capital in the subjects 
 of the empire, for whom alone the Romans made laws. 
 And it is now certainly so in every country, for a subject 
 to carry arms to an enemy. Nay, by the first section of 
 the edict of the states-general against England, of the*- '* 
 5th of December 1652, not only every subject, but a fo- 
 reigner who should carry any kind of merchandize to the 
 English, is to be considered as an enemy. Which by the se-u 
 cond section of the edict of the states-general against the Par -A 
 tuguese, of the 31st of December 1657, is justly restricted to* 
 contraband goods. By the 1st section of the edict of thef \ 
 states-general of the 14th of August 1672, and llth of April 
 1673, against the English and French, and the 1st section of\/ 
 the edict of the 19th of March 1665, against the English, 
 is punished as an enemy to the state, who carries to the h 
 nation any warlike ammunition, provisions, materials for 
 building of ships, or any other prohibited merchandize. Itj 
 is the same with a foreigner who carries those goods to the 
 enemy from this country. 
 
 But the states-general as well as every other prince may % 
 make what laws they please with respect to their subjects; .. 
 not so with respect to foreigners. Hence it is properly asked ,... 
 what is lawful for us by the law of nations to carry to theV: 
 enemies of our friends, or, what is the same thing, what may * 
 our friends lawfully carry to our enemies? Whatever is not? 
 lawful to be carried, if the friend take it, he may lawfully coh-if 
 
 * Cod, qux res export, non deb. 1. 2
 
 TREATISE ON THE LAW OF WAR. 75 
 
 Iiscate, and by that confiscation alone, the whole penalty of ^x 
 ,*he law is satisfied. Grotius, de Jure fe. ac P. 1. 3. c. 1. 
 5. n. 1, 2, 3., being engaged in the consideration of this sub- 
 ct, distinguishes between those things that are useful for ) v 
 purposes of war, those which are not so, and those which } v 
 
 be used indiscriminately in war and in peace. The 
 hrst he prohibits neutrals from carrying to our enemies, the 
 J^econd he permits, the third he sometimes prohibits, and^ 
 , yometimts permits. If we adopt the principles which we have 
 contended for in the preceding chapter, we cannot be much 
 at a loss with regard to the first and second class of arti- 
 cles. As to the third class, Grotms distinguishes, and permits 
 ihe intercepting of things of promiscuous use, but in case of 
 'Necessity only, when otherwise we cannot protect our own, and 
 then under the obligation of restitution. I shall only ask here 
 who is to be the judge of that necessity, for it is very easy to 
 Ilege it as a pretext: Shall it be I, who have taken the arti- 
 [es? Such, I think, is his opinion. But all laws prohibit my 
 itting as judge in my own cause, unless so far as custom, the 
 >rince of tyrants, admits, when treaties between sovereigns 
 are to be interpreted. Nor have I been able to observe, that 
 this distinction of Grothis is supported by the usage of na- 
 tif^&; it rather confirms what he afterwards says, that it is not 
 if JSL to carry to besieged places, things of promiscuous use, 
 because it would be assisting one party to the destruction of 
 the other, as will be more fully explained in the next chap- 
 ter. As to what he adds, in conclusion, that a distinction is 
 ^ be made between the justice and injustice of the war, I 
 think I have sufficiently proved in the preceding chapter, that 
 it may be proper for allies* in a certain case, but never for 
 neutrals. 
 
 * pur author in the chapter to which he refers seems to consider qualified 
 ne\tti\als as allies, and indeed, as we have said, the line is often difficult to be 
 dra^'n between a qualified neutrality and an alliance: but why should states 
 bi toe judges of the justice of the war in one case more than in the other, 
 what has that to do with their engagements? Will they not in every 
 se, as our author himself has before observed, decide for their own ad- 
 itage? See notes p. 71, 72. T.
 
 76 TREATISE ON THE LAW OF WAR. 
 
 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 ene- 
 mies to each other, and hence it follows that I am not to pre- 
 fer either in war. Usage is pointed out by the constant and as 
 it were perpetual custom which sovereigns have been in of 
 making treaties and laws upon this subject, for they have 
 often made such regulations 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. It is agreed amongst almost all 
 nations, that it is not lawful for a friend to carry arms to an 
 y > enemy, or other things which come under the denomination 
 of contraband goods; nevertheless, by the 10th section of the 
 treaty of peace of Westminster, made in the year 1554, be- 
 tween the English and Portuguese, it was stipulated that it 
 should be lawful for the English to carry those things to the 
 enemies of the Portuguese, as is observed by Zentgru 
 De Orig. Verit. & Oblig. Jur. Gent. art. 7. 8. p. m. 296, 
 297. And the Dutch obtained the same privilege of the Por-, 
 tuguese by the 12th article of the treaty of peace between 
 them of the 6th of August 1661. Otherwise the rule which is 
 proved by an almost perpetual succession of treaties, is, that 
 neutrals cannot carry contraband goods to enemies, and that if 
 they do it and are taken in the act, the goods are forfeited; but 
 with the exception of these, they may freely trade with either 
 party, and carry any thing to them with impunity. 
 
 According to these principles it was free to the Dutch, by 
 the 3d article of the marine treaty between Spain and the states- 
 general of the 17th of December 1650, section 4, to trade with 
 the French in any kind of merchandize, in the same manner 
 that they could have done before the war between France and 
 Spain; so however, that they should not carry from the Spanish 
 dominions to the' French, things that might be emplovcd 
 against Spain; but by soction 5, the Dutch are prohibited from 
 carrying contraband goods to the other enemies of Spain, and
 
 TREATISE ON THE LAW OF WAR. 77 
 
 by die 6th section those goods that are contraband are enu- 
 merated. 
 
 Again, by the 2d article of the abovementioned edict of the 
 states-general against the English^ of the 5th of December 1652, 
 neutrals are prohibited from carrying to the English any am- 
 munition of war, or any materials, serving to the equipment of 
 vessels. Provision is also made against carrying contraband 
 goods, by the 2d section of the edicts of 1665, 1672, and 
 1673, which I have already spoken of; there, after enume- 
 rating various species of contraband articles it is added, " and 
 all other articles manufactured and prepared for warlike 
 use." Nearly the same thing is found in the 27th and 28th ar- 
 ticles of the commercial treaty between France and the states- 
 general of the 27th of April, 1662; in the 3d article of 
 the marine treaty between Charles II. king of, England and 
 the states-general of the 1st of December 1674; the 3d 
 article of the treaty of commerce between the king of S-weden 
 and the states-general of the 26th of November 1675; the 
 15th article of the marine treaty between the same powers 
 of the 12th of October 1679; the 15th article of the treaty 
 of commerce between France and the states-general of August 
 1671; the llth section of the edict of the states-general 
 de contrabandis^ of the 28th of July 1705, and in several 
 other treaties between different nations, some of which are 
 enumerated by Zentgravms, 1. 7. 8. 
 
 From these I understand generally, that contraband articles 
 are such as are proper for war, and that it is of no consequence 
 whether or not they are of any use out of war. Very few are 
 the implements of war, which are not also of some use out of 
 war. We wear swords for the decoration of our persons, we 
 make use of the sword for the punishment of criminals; nay, 
 we even make use of gunpowder for our amusement and to 
 express public joy. And yet there is not any doubt but thar 
 these come under the denomination of contraband articles. 
 
 Of those things which are of promiscuous use, it would be 
 endless to dispute, and it would be so if we were to follow 
 Grottus's opinion about necessity and the various distinctions 
 which he brings forward. If we examine the treaties
 
 78 TREATISE ON THE LAW OF WAR. 
 
 between the different nations, which we have already men- 
 tioned, and also those which exist elsewhere, it will be 
 found, that every thing is called contraband, which is of 
 use to belligerent nations in making war; whether they be 
 warlike instruments or materials by themselves fit to be used 
 in war. For what the states-general on the 6th of May 1667, 
 decreed against the Swedes, that even materials, not of them- 
 selves fit for war, but which might easily be adapted to war- 
 like use, were to be considered as contraband, was founded on 
 a special reason, to wit, the right of retaliation, as the states 
 themselves express it in the said decree. 
 
 And hence you will judge whether the materials themselves 
 out of which contraband goods are formed are themselves 
 contraband? Zouch^ de Jure Fee. part, 2. 8. Q. 8., appears, 
 if any thing, ^rather inclined to this opinion. For my part I 
 am not, because reason and precedents incline me to the con- 
 trary. If all materials are prohibited out of which something 
 may be made which is fit for war, the catalogue of contraband 
 goods will be immense, for there is hardly any kind of mate- 
 rial, out of which something at least, fit for war, may not be 
 fabricated. The interdiction of these amounts to a total prohi- 
 bition of commerce, and might as well be so expressed and 
 understood. And the 4th article of the said treaty of the 1 st 
 of December 1674; the 4th of the said treaty of the 26th 
 of November 1675, and the 16th article of the said treaty of 
 the 12th of October 1679, which prohibit neutrals from carry- 
 ing arms to enemies, permit the carrying of iron, brass, me- 
 tals, materials for building ships, and in short every thing 
 which is not already prepared for warlike use. 
 
 Sometimes, however, it happens, that materials for building 
 ships are prohibited, if the enemy is in great need of them, and 
 cannot well carry on the war without them. When the states- 
 general by the 2d section of their edict against the Portuguese, 
 of the 31st of December 1657, prohibited the supplying the 
 Portuguese with those things which by the general usage of 
 nations are considered as contraband of war, they specially 
 added by the 3d section of the same edict, that as they feared 
 nothing from the Portuguese except by sea, no one should
 
 TREATISE ON THE LAW OF WAR. 79 
 
 carry to them even materials for building ships; thus openly 
 distinguishing those materials from contraband articles, and 
 prohibiting them only for a special reason expressly set forth. 
 For the same reason, materials for ship building, are joined 
 with instruments of war, in the 2d section of the edict gainst 
 the English of the 5th of December 1652, and in the edict of 
 the states-general against the French of the 9th of Marct 1689. 
 But these are exceptions which confirm the general rufe. 
 
 It is asked whether scabbards are to be considered as con- 
 traband? Petr'mus Bellus, de Re Militari, part 9. n. 26, 27, 
 28., says that it has been so decided by the military judges, 
 though he himself does not approve of that decision. 
 Zouch, De Jure Fee. part 2. 8. Q. 2., satisfied witi giving 
 out of Bellus, the arguments on both sides, decides nothing^ 
 according to his custom. For my part, I approve o:' the de- 
 cision of the military judges, and I am opposed to the opinion 
 of Bellus, because scabbards, although of promiscuous use, are 
 however, instruments prepared for war. Without scabbards, 
 swords cannot be used, and without swords there cm be no 
 war. Nay, holsters, saddles and belts are numberel among 
 articles of contraband in the said 2d, 3d and 5th articles of the 
 said edicts and treaties which I have above mentiored. Hol- 
 sters, as to their use, do not differ in any thing from scabbards: 
 the latter are cases for swords and the others for pistols. Cer- 
 tainly these might be excused, if they were in v;ry small 
 quantity; and the said third article of the treaty of tie 26th of 
 November 1675,* has also this exception: " unless these instru- 
 ments should be in so small a quantity, that it might be inferred 
 from thence that they were not designed for the use of war." 
 
 What shall we say of srvord hilts? The same, I tiink, as of 
 scabbards, for they are instruments fit and preparel for war, 
 and are also included in the list of contraband goods, in some 
 of the edicts and treaties \vhich I have before citec. Of salt- 
 petre, more doubt might be entertained, because it is not of 
 itself an article fit to be used in war; and yet saltpetre is con- 
 tained in all the lists of contraband articles which I lave men- 
 tioned, for out of saltpetre gunpowder is made, which is now 
 
 * Between the states-general and Swede/:, see p. 77. T,
 
 80 TREATISE ON THE LAW OF WAR. 
 
 the principal article used in war. Nay, I have observed that 
 saltpetre is sometimes mentioned with the addition of gun- 
 powder and sometimes without. Where gunpowder is omitted, 
 saltpetre is mentioned in lieu of it; when both are mentioned, 
 they ate considered as synonymous words, unless saltpetre, on 
 account of its important use in war, should have been excepted 
 by nations out of those articles which of themselves are not 
 fit for var. 
 
 Of tobacco, Zouch informs us, De Jure Fee. part 2. 8. Q. 
 12. that there was a great contention between the English and 
 the Spaniards, and that the latter considered it as contra- 
 band,* to the great indignation of the English, who went so 
 far as to issue reprisals against them. What became after- 
 wards of that controversy I know not; this I know, that I 
 cannot concur in opinion with the Spaniards, because the fact 
 is, that tobacco cannot be of any use in destroying the enemy. 
 Nay, bythe said 3d, 4th, 15th and 16th articles! it is lawful to 
 carry tobacco to an enemy, for by the same articles, it is lawful 
 to carry to the enemies of our friends all things which in the 
 conditiot they are in are not fit for war, and tobacco is nomi- 
 nally incbded among lawful goods, by the 4th article of the 
 said treafrof the 1st of December 1674. 
 
 It is clear by the 1. 22. 1. ff. de Jure Fisc. that if a pledge 
 is forfeittd, the jus pignoris is not thereby extinguished. 
 Hence if neutrals had shipped contraband goods to our ene- 
 mies and jound them for the freight, if the goods are taken in 
 the courst of the voyage, and condemned as contraband, the 
 Dutch lavyers have given it as their opinion that the captain 
 is entitled to his freight, as though the whole voyage had been 
 performed. And it is related that it was thus decided by the 
 court of admiralty of North Holland, on the 6th of May 1665, 
 and of Fr.esland, on the 12th of July in the same year, on the 
 principles that res transit cum suo onere, that the fisk yields to 
 creditors, fjisciis cedit creditoribusfy and others of the like 
 
 * The reason alleged was that tobacco might be used, as well as salt, to 
 preserve provisions from corruption. Zouch, ubi supre). T. 
 
 f Sec p. 77, 78. 
 
 '- In tliis country, and in England, the opposite maxim prevails. The sove- 
 rr'.n is ntftl'nl t.o a priority of payment, et crcditores ctdunt fisco . T.
 
 TREATISE ON THE LAW OF WAR. 8i 
 
 kind. But the court of admiralty of Amsterdam decided dif- 
 ferently on the 9th of July 1666; they refused to allow 
 freight to the captured, without prejudice, however, to his 
 rights against whomsoever else it might concern. And this 
 is very correct; for the freight is not due unless the voyage 
 is performed, and the enemy has lawfully prohibited its 
 being performed. Then contraband goods are condemned, 
 either ex delicto, when the captain and mariners are no 
 less in fault than the owners of the goods, or ex re, for the 
 very carriage of the goods themselves; for although we 
 cannot prohibit neutrals from trading with our enemies, yet 
 we may prohibit thejr assisting them in the war to our 
 destruction. Therefore what is condemned, is condemned 
 without regard to any man, and is to be considered as if. 
 it had perished by the act of God, whereby the jus pignor 
 is extinguished.* I am not, however, astonished at those 
 lawyers having been of opinion, that the master of the vessel 
 has a lien for the freight on contraband goods that are con- 
 demned, I rather wonder that they have not allowed it in 
 preference to the owners of the merchandize; for they have 
 jus in re, a right of property, which is the strongest of all.f 
 
 It is denied that the subject of an ally or confederate, 
 trading with a common enemy, may be punished by us, or 
 his property condemned; because it is said that every one is 
 bound only to obey the laws of his own sovereign, and there- 
 fore that an ally can have no control over him. But reason, 
 usage and public utility, are opposed to that decision. The 
 reader may, if he pleases, turn to what Aitzema has written:}: 
 upon that subject; for my part, I shall abstain from it. As I 
 am now only treating of what contraband is, such a discus- 
 sion cannot with propriety be introduced in this place. 
 
 * This doctrine is now adopted as to contraband goods, v/hich are con- 
 demned ex dellcto; but not as to enemy's goods, which are condemned only 
 ex re. In the latter case, when the conduct of the captured is fair, freight 
 is generally allowed. See post, c. 14 in note. T. 
 
 \ There seems to be no real difference here, for the master can only 
 claim as agent for the owners, to whom the freight belongs. T. 
 
 Aitz. 1. 46.
 
 82 TREATISE ON THE LAW OF WAR. 
 
 CHAPTER XL 
 
 Of Trade with blockaded and besieged Places. 
 
 I HAVE said in a former chapter,* that by the usage of 
 nations, and according to the principles of natural reason, 
 it is not lawful to carry any thing to places that are blockaded 
 or besieged. Grotius is of the same opinion; for he reprobates 
 the carrying any thing to blockaded or besieged places, " if 
 it should impede the execution of the belligerent's lawful 
 designs; and if the carriers might have known of the siege or 
 blockade; as in the case of a town actually invested or a port 
 closely blockaded, and when a surrender or a peace is already 
 expected to take place."f Indeed, it is sufficient that there be 
 a siege or blockade to make it unlawful to carry any thing, 
 (whether contraband or not, to a place thus circumstanced; 
 for those who are within may be compelled to surrender, not 
 merely by the direct application offeree, but also by the want 
 of provisions and other necessaries. If, therefore, it should 
 be lawful to carry to them what they are in need of, the bel- 
 ligerent might thereby be compelled to raise the siege or 
 
 * Above, c. 4. p. 31. 
 
 f Si juris mei executionem rerum subvectio impedierit, id/jue scire potuerit 
 qui advexit, UT si oppiJum obsessum tenebam, si portus clauses, & jam deditio 
 nut pax expectabatur, tenebitur ille tnihi de damno culpd data, ut qui debitorem 
 carceri exemit, aut fugam ejus in meam fraudem instruxit; si damnum 
 nondum dederit, sed dare voluerit, jus erit rerum rttentione eitm cogere ut 
 de future caveat, obsidibits, pignoribus, aut alio modo. If he (the carrier) 
 should by his supplies impede the execution of any lawful designs; as 
 if I kept a town besieged or a port closely blockaded, and I already 
 expected a surrender or a peace; he will be liable to me for the damage 
 occasioned by his fault, in like manner as he who should make my debtor 
 escape out of prison, or aid him in his flight to defraud me of my right; 
 and if he has not occasioned to me any actual damage, but has been 
 willing to do it, in that case, it will be lawful by the detention of his goods, 
 to compel him to give security for the future, by hostages, pledges or in 
 some other way. Grot, de J. B. ac P. 1. 3. c. 1. 5. n. 3. T.
 
 TREATISE ON THE LAW OF WAR. 83 
 
 blockade, which would be doing him an injury, and therefore 
 would be unjust. And because it cannot be known what ar- 
 ticles the besieged may want, the law forbids in general terms 
 carrying any thing to them; otherwise disputes and altercations 
 would arise to which there would be no end. 
 
 Thus far my opinion coincides with that of Grotius, but I 
 cannot agree with him when he requires an expectation of a 
 surrender or a peace,* and when he says immediately after- 
 wards that even under those circumstances, the carrier is only 
 bound to an indemnity for the damage occasioned by his faulty 
 and if no damage has been suffered, that he may only be com- 
 pelled by the detention of his goods to give security that he will 
 not do the like in future. I wish that Grotius had not laid down 
 such principles, which are neither consonant to reason, nor to 
 the sense of treaties. For on what principle am I to be the 
 judge of the future surrender or peace? and if neither is ex- 
 pected, is it then lawful to carry any thing to the besieged? 
 I think on the contrary, that during a siege, it is always 
 unlawful. It is not acting a friendly part to ruin, or in any 
 way impair, the cause of a friend, and if so, why shall he who 
 carried supplies to my enemy not be bound farther than for 
 the damage occasioned by his fault? Such conduct has always 
 been considered as a capital crime in subjects, nay, in neutrals, 
 when previously warned by a proclamation, and often without 
 such warning. As they are generally private individuals, who, 
 impelled by the thirst of gain, are in the habit of administering, 
 supplies to the besieged; suppose, for instance, that such a one 
 has been the cause that a city has not been taken, I should 
 hardly think in such a case that any individual could be rich 
 enough to repair the damage thereby suffered. And if he 
 should be intercepted on his way to the besieged town with 
 
 * Our author appears here to have mistaken the meaning of Grotius. That 
 writer does not, in our opinion, require as a necessary ingredient in a strict 
 blockade, that there should be an expectation of peace OP of a surrender, but 
 merely mentions that as an example, and by way of putting the strongest 
 possible case. We have transcribed the passage in the original lan- 
 guage, with a literal translation in the preceding note, in order that our 
 readers may be enabled to judge for themselves of the correctness of this 
 remark. T.
 
 84 TREATISE ON THE LAW OF WAR. 
 
 the supplies that he is carrying thither, shall we be content 
 with taking and retaining the articles, and that merely until 
 he gives security that he shall not commit the like in future? 
 
 1 cannot subscribe to this opinion; being taught by the usage 
 of nations, that the least punishment in such a case is the for- 
 feiture of the things taken; and that a corporal penalty at 
 least, if not a capital one, is often inflicted on the offender.* 
 
 Let us now turn to some treaties on this subject. By the 9th 
 article of the marine treaty between the king of Spain and the 
 states-general, of the 17th of December 1650, it is simply agreed, 
 " that it shall not be lawful to carry goods, even not contraband, 
 to places blockaded and besieged." The same clause is con- 
 tained in a variety of other treaties! \ all of which, however, 
 merely stipulate that it is unlawful to carry any thing to 
 besieged or blockaded places, without affixing any penalty 
 to the offence. But, if the carrying of any thing to a besieged 
 town or place is illicit, it follows that every thing which is 
 carried thither is to be considered as contraband; for every 
 
 * This is a very severe doctrine, and which certainly is not conformable 
 to the usage of nations at the present day; but it must be observed that our 
 author, as well as Grotius, only meant to speak of a strict and actual siege or 
 blockade, where a town is actually invested with troops, or a port closely 
 blockaded by ships of war, portus clausus, as Grotius emphatically expresses 
 it; for at the time when those great men wrote, no idea was enter- 
 tained of that enormous system of universal blockade, by means of edicts 
 and proclamations, the effects of which have desolated the world for the 
 last twenty years. T. 
 
 \ Treaty of commerce between the states-general and the king of France, 
 of the 2rth of April 1662, art. 29. Marine treaty between the king of 
 England and the states-general, of the 1st of December 1674, art. 4. Treaty 
 of commerce between the king of France and the states-general, of the 10th 
 of August 1678, art. 16. Treaty of commerce between the king of Sweden 
 and the states-general, of the 12th of October 1679, art. 16, and a great 
 number of other treaties. 
 
 t In our treaties with other nations, no other punishment is contemplated 
 for a breach of blockade, than a confiscation of ihe ships and goods. In our 
 treaty with Great Britain of the 19th of November 1794, art. 18, it is even 
 stipulated that that punishment shall not be inflicted, except in the case of 
 a vessel which shall, after being warned, attempt to enter a blockaded port. 
 
 2 Laivs U. S. 484. A similar stipulation is contained in the 12th article of 
 our convention with France, of the 30th of September 1800. 6 Laws U. S. 
 Appendix xx. '/'.
 
 TREATISE ON THE LAW OF WAR. 85 
 
 thing which is carried from one place to another contrary to 
 law and treaties* is contraband, and as such, is at least liable 
 to forfeiture. Thus usage has established it, as will be more 
 fully shewn in the sequel; it has also established that the 
 offenders may be punished capitally, or with a milder punish- 
 ment, according to the circumstances of the case.f 
 
 Not only towns or cities, but camps likewise may be sur- 
 rounded with troops and as it were besieged. In such a case it 
 is not more lawful to carry any thing to them, than to invested 
 cities. But if they are not besieged, I see no reason why neutrals 
 may not lawfully carry thither any thing which may be lawfully 
 carried to towns, ports and places so circumstanced, that is to 
 say, every thing which is not actually contraband. And yet, 
 the counsellors of the states-general, in the name of the states, 
 issued an edict on the 9thof August 1622, by which they decreed, 
 that all who should carry any thing to the Spanish camp before 
 Bergen-op-Zoom, should be considered as enemies. The same 
 counsellors, on the 2d of September 1624, and on the 21st of 
 March 1636, decreed the same thing against those who should 
 carry any thing to the Spanish camp. 
 
 Those edicts are undoubtedly too unjust to be defended, if 
 the camp to which they apply is not besieged, and the things 
 
 * Goods prohibited by treaty between the sovereigns of the captors and 
 the captured, though otherwise they might not be considered as contraband, 
 are condemned ex delicto, and no freight is allowed upon them. The Neu- 
 traliteet, 3 Rob. 240. Am. edit. T. 
 
 f At this day, however, the only penalty which is inflicted for trading 
 with a blockaded port is the forfeiture of the property detected in the 
 pursuit of such trade. It is true, that on the strict principles of the law of 
 nations, those who knowingly trade with blockaded ports, may justly be 
 considered and treated as enemies, and so Vattel lays it down in his Treatise 
 en the Law of Nations, 1. 3. c. 7. 117. But, in the manner that war is now 
 carried on, such treatment cannot extend farther than the confiscation of the 
 property, and perhaps, the imprisonment of the neutral captains and crews, 
 which has sometimes, though rarely, taken place, and can only be justified 
 (if at all) in very flagrant cases. Vattel does not mention any specific punish- 
 ment to be inflicted in cases of this kind, though he relates the stoiy of 
 Demetrius, who hanged the captain and pilot of a ship carrying provisions 
 to Athens, which he was besieging. But precedents are not now to be drawn 
 from such barbarous times. T
 
 86 TREATISE ON THE LAW OF WAR. 
 
 are not carried through the neutral's territory. The two first, 
 however, extended to the subjects of the United Nether- 
 lands, to neutrals, and to the subjects of those states who 
 were under the protection of the Dutch. But, although every 
 sovereign has a right to enact with respect to his own subjects, 
 what laws he may think proper, and no one can find fault with 
 him for so doing; yet as far as they apply to neutrals, and the 
 subjects of countries under the protection of the states, those 
 edicts cannot be supported unless they are restricted to con- 
 traband only. The third edict of the 21st March 1636, relates 
 to neutrals who should carry provisions or implements of war 
 to the Spanish fortresses; but that was done, as is expressly 
 mentioned, by way of retaliation, because the Spaniards had 
 treated as enemies those who had assisted the town of Maes- 
 tricht with provisions and arms. Retaliation,* therefore, re- 
 moves the hardship of the edict as to provisions, which 
 otherwise neutrals may lawfully carry, if there be no treaty to 
 the contrary; but it is otherwise with arms and military stores, 
 even though they be carried to a place not besieged, and so 
 far this edict is perfectly just. As to other things, whether 
 they were or not lawfully prohibited by the edicts of the 
 Spaniards or of the states-general, depends entirely upon the 
 circumstance of the places being besieged or not. 
 
 * It is but seldom that we are disposed to controvert the principles laid 
 down by this excellent author, but \ve must here again refer the reader to 
 what he says himself in chapter 4: Retorsio non est nisi adversus eum, qui 
 ipst damni quid dedit, ac deinde* patitur, non vero adversus crnntnuntin amicum- 
 " Retaliation is only to be exercised on him who has inflicted the injury, 
 and therefore justly suffers for it, but not on a common friend." See above, p. 
 33. How then can he maintain in the present instance, as well as in another 
 (p. 61.) that an injury done to a neutral can be justified on the principle of 
 retaliation upon the enemy! We would have supposed that national preju- 
 dice (as in both the above cases the Dutch were the authors of the injury to 
 neutrals) had made him overlook the very principle on which he had set out 
 in the beginning of his work, were it not that he applies it there against a 
 similar act of his own government, and freely reproves their conduct in 
 several other instances. Whatever may have been his motive, we are com- 
 pelled to say that he is here in direct contradiction with himself, and that 
 on his own clear and luminous principle, his justification of the conduct 
 of the Dutch in these two instances cannot be supported. T.
 
 TREATISE ON THE LAW OF WAR. 87 
 
 The same law which obtains with respect to towns that 
 are really besieged, and by a parity of reasoning has been ap- 
 plied to camps, as being, as it were, besieged, applies also to 
 enemy's ports, which are blockaded by ships of war, and there- 
 fore are considered as in a state of siege. There is on this 
 subject a remarkable decree of the states-general, of the 26th 
 of June 1630, made with the advice and opinion of the court 
 of admiralty of Amsterdam, and of other courts of admiralty, 
 nay, it is probable, with the advice also of some private 
 lawyers.* At that time, the states were blockading with 
 ships of war the maritime coast of Flanders; it was then 
 made a question whether neutrals might carry on trade with 
 the ports of that country, and upon that the states made the 
 decree in question, which we shall here lay before our readers 
 and accompany it with a few remarks. 
 
 The first article provided " that the ships and goods of 
 neutrals which should be found going in or coming out of the 
 enemy's ports in Flanders, or being so near thereto, as to shew 
 beyond a doubt that they were endeavouring to run into them, 
 should be confiscated, because their high mightinesses kept the 
 said ports continually blockaded with their ships of war, in 
 order to prevent any commerce between them and the enemyjf 
 as had been the custom many years before, after the example 
 of all other princes, who had claimed and enforced a similar 
 right in like cases" 
 
 By the second article it was ordered that the ships and 
 goods should be confiscated, " if from the charter-parties, or 
 other documents on board, it should appear that the vessels 
 were bound to the said Flemish ports, although they should 
 be found at a distance from them, unless they, of their own 
 accord, before coming in sight of or being chased by our 
 country's ships, should repent their intention, while the thing 
 was yet undone, and alter their course; in which case the mat- 
 ter should be decided according to conjectures and circum- 
 stances." 
 
 * Consil. Holland, vol. 5. Consil. 161. 
 
 f The Spaniards, whose king was at that time sovereign of the county of 
 Flanders, and of the rest of the Catholic Netherlands. T.
 
 88 TREATISE ON THE LAW OF WAR. 
 
 The third article directs the confiscation of such ships with 
 their cargoes, "as should come out of the said ports, not 
 having been forced into them by stress of weather, although 
 they should be taken at a distance from thence, unless they 
 had after leaving the enemy's port performed a voyage to a 
 port of their own country, or to some other neutral or free 
 port, in which case they should not be condemned; but if in 
 coming out of the said Flemish ports they should be pursued 
 by our own ships, chased into another port, such as their own 
 or that of their destination, and found on the high sea coming 
 out of such port, in that case they might lawfully be captured 
 and confiscated." There is also a fourth article, which I have 
 recited and commented upon before,* and which I think it 
 unnecessary to say any more upon. But the three first articles 
 of this law appear to me to require some explanation. 
 
 As to the first article, inasmuch as it condemns vessels 
 found actually going into or coming out of the enemy's ports, 
 there is no reason for it, but that which is expressed in the 
 edict itself. It goes however further, and confiscates those 
 which shall be found so near to the enemy's ports as to shew 
 beyond a doubt that they intend running into them. This is 
 reasonable also; because if prohibited goods are found on the 
 confines of the hostile territory, they are presumed to be car- 
 rying to the enemy, not only according to the most general 
 opinion of the civilians,! but also according to the intent and 
 meaning of the states-general, which is fully expressed in this 
 law and in various other edicts, :{: unless, indeed, as is provided 
 in all the said edicts, they should prove that they were driven 
 in by stress of weather. The same exception is made in the 
 second article of this decree. 
 
 But, not to leave the coast of Flanders, precisely the same 
 thing was decreed on the same subject, in the infancy of our 
 
 * Above, c. 4. p. 30. 
 
 | Zc/ttcA, DC Jure Fee. p. 2. 8. Q. 10. quotes a number of authorities to 
 tliis point. 
 
 i Edicts against the English, of the 5th December 1652, and 1 9th of March 
 J665, 4. Against the English and French of the 14th of April 1672, and 
 llth of April 1673, 4-
 
 TREATISE ON THE LAW OF WAR. 89 
 
 republic; for by the edicts of the earl of Leicester,* by which 
 he prohibits as well to foreigners as to subjects all commerce 
 with the Spaniards, and by the edict of the states of Holland, 
 of the 27th July 1584, neutrals, trading with the Flemish ports, 
 are punished with the confiscation of their ships and goods, 
 and that edict expressly provides that those " who shall be 
 found on the coast of Flanders, or near " to some of the pro- 
 hibited ports, shall be adjudged to have contravened this 
 ordinance, except incases of extreme and well proved necessity." 
 The opinion of Cynu-t, who writes that they are, even in such 
 a case, to be punished as going to the ports of the enemies, 
 when they have so far advanced on their way that they cannot 
 return, is therefore not admissible, although it has the ap- 
 probation of Albericus Gentilis.\ 
 
 Thus much I have thought proper to observe on the first 
 article of this law; the reasonableness of which applies equally 
 to the second article; for those things which are taken near to 
 besieged places, are not condemned for any other reason, than 
 that an intention of trading with the enemy is tacitly collected 
 from the internal evidence of the fact itself, and it amounts to 
 the same thing, as if that intention had clearly appeared from 
 the documents on board, and therefore there is no room for 
 any doubt. But what is added about repentance, I find some 
 difficulty to admit; if, however, there is sufficient proof of 
 the alteration of the voyage, I should not be far from acceding 
 to that opinion. 
 
 The third article properly distinguishes between vessels 
 which are chased or compelled to take refuge and those who 
 proceed voluntarily to the port of their destination. The latter 
 are excused, when found coming out of that port, their voyage 
 being considered as ended, and a new one begun, while the 
 former are condemned, as being taken in the very act of 
 violation of blockade. But on the subject of these, the edict 
 speaks in the disjunctive, and says, "if they are chased into 
 their orvn port OR the port of their destination" so that there 
 may be a doubt as to the sense of these words and the law 
 
 * Edict of the 4th of April 1586 of the 4th of August same year, 9. 
 t De adyocat. Hispan. 1. 1. c. 20. p. m. 86. 
 
 fM
 
 90 TREATISE ON THE LAW OF WAR. 
 
 which results from them. Certainly there can be no doubt, if 
 the same thing is meant by their own port, and the port of 
 their destination; But if an Englishman who was bound to 
 a port of Denmark is driven into a port of England, and 
 coming out of it, and prosecuting his voyage, should be taken 
 before he reached the Danish port, it appears to me that he 
 would be taken in the course and in the very act of the illicit 
 voyage, and that it would be of no consequence, whether it was 
 his own port, or not, which he had entered into, if the voyage 
 which he was engaged in had not been completely finished. 
 Therefore, as disjunctives are frequently to be construed as 
 conjunctives, I understand these words " their orvn port" in 
 the said article, to mean the port to which the vessel was 
 bound, and where her voyage was to be ended.* I shall put a 
 case, in order more fully to illustrate my meaning: Suppose 
 that a vessel from Zierikzee\ is taken by the Dunkirkers, who 
 condemn and sell her, and she is purchased by a Scotchman. 
 By the 4th article of the said decree which I have above recited 
 at large:}: it is only lawful to capture and condemn her, if found 
 coming out of an enemy's port before she had entered into her 
 own or into some other free port, but not afterwards. This 
 vessel now belonging to the Scotchman, and coming out of 
 Dunkirk, is met with, but not taken. She runs into Tarmouth, 
 where she was not bound to, and coming out of that port, is 
 captured. It is asked whether she is to be considered as having 
 entered into her own port within the meaning of the edict? 
 I cannot say that she is, because she has not entered into the 
 port to which she was bound. The states-general in a similar 
 case, with the advice of the admiralty of Zealand, decreed on 
 
 * We cannot perceive how any difficulty can arise as to the construction 
 of this part of the edict; since, whether the vessel was chased into the 
 actual port of her destination or into any other port of her own country, 
 she is equally to be condemned according to the letter of the law as it is 
 given to us. So that the interpretation which our author contends for, 
 appears to us to be not only unnecessary but dangerous, as it would make 
 'a merely consti active offence, of what the legislator expressly made a 
 positive one. T. 
 
 f A port of Zealand, in the island of Schouwen, at the mouth of (lie 
 Scheldt. T. 
 
 J C. 4. p. 30.
 
 TREATISE ON THE LAW OF WAR. 91 
 
 the 27th of January 1631, that the vessel should be con- 
 demned, as being within the edict of the 26th June 1630.* f 
 What is said, moreover, in this third article about a. free port, 
 is explained by the fourth; for that cannot be understood to be 
 a free port, which is under the same king or government with 
 another which is not considered as such.:}: 
 
 This decree of the 26th June 1630, was for some time not 
 carried into execution, and in the mean while a free com- 
 mercial intercourse in 1642 carried on with Flanders. During 
 that period certain neutral vessels, trading thither were cap- 
 tured by our vessels, and carried into Zealand. The contra- 
 band goods, however, were alone detained and condemned, 
 and all the remainder was acquitted and released. It has been 
 asked by what law the contraband goods were condemned 
 under those circumstances, and there are those who deny the 
 legality of their condemnation. $ It is evident, however, that 
 while those coasts were guarded in a lax or remiss manner, 
 the law of blockade, by which all neutral goods going to or 
 coming from a blockaded port may be lawfully captured, might 
 also have been relaxed; but not so the general law of war, 
 
 * Aitz. 1. 11. 
 
 f This decree appears to us to have been very correct, not because the 
 vessel hail gone into a port of her own country, different from that of hep 
 actual destination, which, if she had done voluntarily, would have been a 
 sufficient excuse, but because she had run into the port of Yarmouth to 
 avoid pursuit, and was captured coming from thence, in consequence of 
 which she was clearly within the letter of the third article of the edict. 71 
 
 $. The 4th article provides, that ships coming 1 out of enemy's ports shall 
 be condemned, if they are taken before they shall have been into their awn 
 or other free ports. (~See above, p. 2Q.J Our author impressed with the idea 
 that the words their mvn in the 3d article, only meant the ports of their 
 actual destination, and being embarrassed by the words or other free port? 
 in the 4th article, which clearly point to the opposite construction, thinks 
 to get rid of his embarrassment, by assuming that other free ports cannot 
 mean ports of the same country, that is to say, of the country to which the 
 neutral belongs; thus arguing in a circle to which his first mistake una- 
 voidably led him. We are loth to controvert the opinions of so great a 
 writer, in any c'ase, particularly when he is construing a law of his ova. 
 country; but in the present instance the mistake is so obvious that \ve could 
 not avoid noticing it. T 
 
 Consil. Holland, vol. 2. Consil. 21.
 
 92 TREATISE ON THE LAW OF WAR. 
 
 by which contraband goods, when carried to an enemy's pert, 
 even though not blockaded, are liable to confiscation. 
 
 But although, as I have observed, the rigour of this decree 
 of the 26th June 1630, may be sufficiently justified, it may 
 however, be relaxed, if it shall be thought proper, and it has 
 in fact often been relaxed. When admiral Van Tramp, in the 
 year 1645, blockaded the ports of Flanders, with the fleet of 
 the states-general, and asked of them, what he should do with 
 neutral vessels, they decreed on the 1st of July, that neutrals 
 should by all means be prevented from entering the ports of 
 Flanders, but that their goods, not being contraband, should 
 not be condemned.* The states, on that occasion, deviated 
 from the principles which their predecessors had adopted in 
 163O. But when men change, what is there to prevent opinions 
 from changing likewise? 
 
 If the principles which I have contended for in this and the 
 two preceding chapters are correct, it will be easy with their 
 help, to decide on the difference which took place between the 
 English on one side, and the Poles and other nations on the 
 other, of which Zouch gives us a particular account.! \ 
 
 * Aitz. 1. 4. Ibid. 1. 25. 
 
 f De Jure Fee. p. 2. 8. Q. 7. 
 
 | The difference to which our author alludes, is related by Zouch, sub- 
 stantially as follows: Queen Elizabeth being at war with Spain, had 
 prohibited neutrals from carrying on any trade with that country. The am- 
 bassador of the king of Poland, in the name of his master, complained of it 
 to the queen herself, in terms rather indecorous, to which she replied with 
 becoming dignity, and defended her conduct by alleging, that the kings of 
 Poland and Sweden liad acted in the same manner some time before in a 
 similar circumstance. The fact was, however, that those sovereigns in the 
 year 1572, being at war with the c/ar of Muscovy, had merely prohibited 
 the intercourse of neutrals with the ports of Livonia, which they blockaded 
 with their ships, and which was at that time the theatre of the war by land, 
 so that if Zouch is correct in his statement, the two cases were not parallel. 
 But Elizabeth at that time was flushed with her victory over the invincible 
 armada of Spain, and thought that there were no bounds to her maritime 
 power. 
 
 To the Hanse Towns, Seldcn informs us, that she gave as a reason for the 
 same proceeding, of which they also complained, that their ships could not go 
 to Spain without passing through the English seas, which they had no right to 
 do without her permission. Indeed, that author tells us that the measure
 
 TREATISE ON THE LAW OF WAR. 93 
 
 CHAPTER XII. 
 
 Of the mixture of lawful with contraband goods. 
 
 T F a neutral carries at the same time, lawful and unlawful 
 - goods to the enemy, and the vessel should be taken, it is 
 asked, " whether the vessel itself and the lawful goods that 
 are on board are to be condemned on account of those which 
 are unlawful?" The same may be asked, if from any other 
 cause, lawful and unlawful goods are mixed together. This 
 was one of the several questions which were proposed in the 
 year 1631, by the admiralty of Amsterdam to the states- 
 general, for the interpretation of their edict of the 1st of April 
 1622. But, although the states gave their answer to the other 
 questions which were propounded to them at the same time, 
 Aitzema informs us* that they kept this under advisement. 
 And I do not find that any decision has been given upon 
 it, either at that time, or at any time since; the states-ge- 
 neral, however, on the 6th of May 1667, gave public orders 
 to their courts of admiralty, that they should not condemn 
 lawful goods, or even the ship, on account of illicit merchan- 
 dize. Thus much and no more, we are told by Aitzema,] and 
 the states-general express themselves in the same general 
 terms, in their several edicts of the llth September 16654 
 
 was not merely intended by Elizabeth to distress her enemies, but also to 
 assert her claim to the dominion of the seas ("dominii maris causa. J From 
 his relation, however, and that of other respectable writers, such AS 
 Thuanus and Camdtn, it would seem that the prohibition was not general, 
 as Zouc/i represents it, but was restricted to warlike stores and provisions, 
 which at that time were by many considered as contraband. See on this 
 subject, Zouch, ubi supra. Stlden, Mare Claus. \. 2. c. 20. Cainden, Anna!, 
 sub anno l597.Thuan. Histor. 1. 96 Marquard. De Jure Merest, p. 149. 
 Koch, Hist, des Traitfs, vol. 3. p. 1928. T. 
 
 * L. 11. t L. 47. 
 
 J Consil. Belg. vol. 4. Consil 206. Q. 1>.
 
 94 TREATISE ON THE LAW OF WAR. 
 
 But I am of opinion with the authors quoted by Zouch, in 
 his treatise on the Law of Nations,* that there is a wide dis- 
 ,<tinction to be made between the case where both the lawful 
 and unlawful goods belong to the same owner, and that in 
 which they are the property of different persons. If they 
 belong to the same owner, then the whole may be lawfully 
 condemned, as a just punishment for the offence; but on the 
 contrary, if they are the property of different shippers, then 
 the act of one of them ought not to affect the others. This 
 distinction was very properly taken by the Dutch lawyers, on 
 the 31st of July 1692.f The Digest\ also affords a strong 
 argument in favour of this opinion, where, speaking of the 
 owner of the vessel, Paulus distinguishes whether he knew 
 or not that unlawful goods had been laden on board; if he 
 knew of it, as if it was done in his presence, the law in that 
 case declares that the ship also is forfeited; if on the con- 
 trary it had been done in his absence, and therefore he did 
 not know of it, then the vessel is to be restored to him be- 
 cause he is not in fault. Zouch^ however, without making 
 any distinction, relates a case from Petrinus Bellus, by which 
 it would seem that lawful goods had been condemned on 
 account of others which were illicit, but on referring to that 
 author,ff it appears, that in that particular case, both the lawful 
 and unlawful goods belonged to the same owner, who knew 
 of the fraud, and therefore was properly punished with the 
 confiscation of both: But of this we shall speak more at large 
 presently. 
 
 In the meanwhile we shall turn our attention to the treaties 
 and laws of our country, which have been made upon the 
 subject. By the treaty of navigation between Spain and the 
 states-general, of the 4th of February 1648, and the 12th 
 article of the marine treaty between the same powers of the 
 
 * De Jure Fee. p. 2. 8. C^ 13. In the original, the reference is by 
 mistake to Q. 3. T. 
 
 j Consil. Belg. vol. 4. Consil 210. 
 
 t ff de Public. & Vectigal. 1. 1. $ 2. 
 
 Ulti supra. 
 
 U Zouch does not point out where the passage is to be fouml, but it is in 
 fr-llvs'.-: Treatise De Pe Militari, part 9. 22. 26. 27. 28,
 
 TREATISE ON THE LAW OF WAR. 95 
 
 17th, 1650, it Js simply agreed, " that it shall not be lawful 
 for the subjects of either country to carry contraband goods 
 to the enemy of the other, otherwise, that such goods shall be 
 confiscated. The same stipulation is contained in the 24th and 
 36th articles of the treaty between France and the states- 
 general of the 27th of April 1662, but without any particular 
 provision as to goods not contraband. In like manner, the 
 several edicts of the states-general against the English and 
 against the English and French* after enumerating a long 
 series of contraband articles, direct the confiscation of these, 
 without saying any thing as to lawful goods which may be 
 found with them. 
 
 But by the 7th article of the marine treaty between Charles 
 II. of England and the states-general, a distinction is clearly 
 made between lawful and contraband goods, and the latter, but 
 not the former, are declared liable to confiscation; nay, if the 
 unlawful goods are immediately delivered up to the captors, 
 the ship is to be instantly released, with the remainder of the 
 cargo, and suffered to proceed on her destined voyage. A 
 similar provision is made in a variety of other treatiesf in 
 which they differ from the edicts above mentioned, which 
 direct the ships to be sent into port for legal adjudication, in 
 all cases where contraband goods are found on board. By the 
 7th article of the treaty of commerce between the king of 
 Sweden and the states-general of the 26th of November 1675, 
 it is only stipulated that contraband goods shall be confiscated, 
 but not the ship or lawful merchandize. No provision is 
 made, as in the other treaties, for the immediate release of the 
 vessel and of the innocent part of the cargo.:}: 
 
 * Of the 19th of March 1655, 14th of April 1672, and llth of April 1673. 
 
 f Marine treaty between the Swedes and the states-general of the 12th of 
 October 1679, art. 21. 26. Treaty of commerce between France and the 
 states-general of the 10th of August 1678, art. 21. 26. Treaty of commerce 
 bet ween the same, of the 20th September 1697, art. 26. 31. and of the llth 
 of April 1713, art. 25. 30. 
 
 J In the treaties of the United States with other nations, the most liberal 
 principle has been adopted in respect to the seizure of vessels having con- 
 traband goods on board going to the enemy. By the 17th article' of our 
 treaty with Great Britain of the 19th November 1794, it was stipulated
 
 96 TREATISE ON THE LAW OF WAR. 
 
 Such are the rules laid down by our own laws and treaties, 
 and if we are to infer from them what the law of nations is, 
 it will follow as a principle, that ships and lawful goods are 
 never to be condemned on account of contraband merchandize 
 carried on board of the same vessel. But it is not from thence 
 that the law of nations is to be deduced. Reason, as we have 
 said before, is the supreme law of nations, and she does not 
 permit that we should understand these things altogether 
 generally and without distinction. As to the vessel, I think 
 that it ought to be distinguished, whether she belongs to the 
 captain himself or to others. If to the captain, I should here 
 again distinguish, whether he knew (as is most frequently the 
 case) that contraband goods had been shipped on board of 
 her, or whether he was ignorant of it; as if the mariners, in 
 his absence, had concealed such goods on board. If he 
 knew of it, he is himself guilty of the fraud, because he 
 hired his ship for an unlawful purpose, and she ought there- 
 fore to be confiscated; but it is otherwise, if he did not know 
 it, because in that case, the fraud cannot be laid to his charge. 
 Such is the doctrine laid down by Paulus,* and it is evidently 
 conformable to the dictates of sound reason and of common 
 sense.f 
 
 " that in all cases where vessels should be captured or detained ion just 
 suspicion of having on board enemy's property, or of carrying to the enemy 
 any of the articles which are contraband of war, the said vessel should be 
 brought to the nearest and most convenient port; and if any property of an 
 enemy should be found on board such vessel, that part only which belonged 
 to the enemy should be made prize, and the vessel should be at liberty to 
 proceed with the remainder, without any impediment. 2 Laws U. S. 483 
 and by our convention with France of the 30th September 1800, art. 20, it 
 was agreed, that in case the vessels of either party should be captured for 
 carrying contraband to the enemy, the contraband goods only should be 
 condemned, "saving always the ship and the other goods which it should 
 contain." 6 Lawt U- S. append, xxxii. T. 
 
 * ff. dc Public. & Vectig. 1. 11. $ 2. 
 
 t At present, neutral ships are not confiscated for carrying contraband 
 goods to the enemy, though with the master's knowledge. The Neutralitx t, 
 3 Rob. 240. The Mercurius, 1 Rob. 242. The Jonge Tobias, 1 Rob. 277- 
 Am. edit. T
 
 TREATISE ON THE LAW OF WAR. 97 
 
 The same is to be said if the vessel belongs to another per- 
 son, for Paulus applies his principle to the master only. If, 
 therefore, the master has taken illicit goods on board, without 
 the knowledge of the owners, their ship shall not be con- 
 fiscated; but the law will be otherwise, if they knew of their 
 being shipped, and thus have become parties to the unlawful 
 act. It would be unjust, that the owners should suffer for 
 the act of the master; but it is right and proper that they 
 should suffer for their own. This distinction between the 
 knowledge and ignorance of the captain is not so frequent at 
 this time as it was formerly, because, according to the present 
 usage, the master is in the habit of signing bills of lading of 
 the merchandize shipped on board of his vessel, by which he 
 promises that he will take good care of it for the shippers. 
 It may, however, still apply, if nevertheless, unlawful goods 
 should be privately conveyed on board of the vessel, without 
 the knowledge of the master. But as to owners of the ship, 
 others than the master, the rule may have even now a frequent 
 application. 
 
 As to the owners of the goods, I think, that for the same 
 reason, a distinction ought also to be made, as I have said 
 above, and it ought to be distinguished, whether all the goods 
 belong to one and the same person, or to several. If to one 
 and the same, I think that the whole may justly be confiscated, 
 exactly as by the Roman law in revenue cases, if any one 
 carries at the same time lawful and unlawful merchandize, and 
 declares the one and conceals the other, both are confiscated 
 on account of the fraud of the carrier, as the commentators on 
 the title of the Digest De Publicanis & Vectigalibus* have 
 properly collected from the text of that law itself, and from 
 the third law of the code De Nautico Fcenore.\ Others are 
 pleased with another distinction, to wit: whether the lawful 
 goods may be easily separated from the unlawful; if they can- 
 not, then they are of opinion, that the whole is to be con- 
 demned, otherwise the contraband goods alone are to be 
 confiscated, and the remainder to be released without consi- 
 
 * L. 11. $2. 
 
 t See that law translated in the American Law Journal, vol. 3. p. 15.5. T. 
 
 fN
 
 98 TREATISE ON THE LAW OF WAR. 
 
 
 
 tiering whether it belongs to the same owner or not. But this 
 distinction, as the separation can always be made, is neither 
 founded on reason, nor on any authority of law. It is more 
 reasonable, and at the same time more consonant to legal 
 principles, to distinguish whether the lawful goods belong to 
 another than the author of the fraud; then the principle pro- 
 perly applies, that one person should not be deprived of his 
 goods for the fraud of another. This doctrine may be sup- 
 ported by a variety of authorities taken from the Roman law, 
 in analogous cases; as if one of several co-heirs defrauds the 
 revenue of the tax on dutiable property belonging to the estate 
 of the deceased, the shares of the other heirs are not on that 
 account to be confiscated.* In the same manner, if the farmer 
 or servants of a landholder should manufacture iron on his 
 estate, contrary to law,f if it should be done without the 
 knowledge of the owner, he shall not suffer any penalty,:}: nor 
 shall the bottomry or respondentia creditor suffer, if by the 
 V ) fraud of his debtor in shipping unlawful goods, the ship and 
 cargo should be confiscated.^ 
 
 But what if the owners of lawful goods should merely have 
 known that others had laden unlawful merchandize on board 
 of the same vessel? Shall this mere knowledge occasion also 
 the confiscation of the lawful goods. Such appears to have 
 been the opinion of a certain lawyer, which is recorded in the 
 Consilia Belglca^ but I do not agree with him, nor do I find 
 that he is supported by any authority; he might, perhaps, 
 have appealed, (though he does not do it), to the abovemen- 
 tioned text of the Digest, where it is said, that the owner is 
 n,ot to suffer, if his farmer or servants have manufactured iron 
 upon his estate without his knowledge: from whence he might 
 have implied, that if the same thing is done with the know- 
 ledge of the owner, he ought to be punished, because it was 
 
 * ff de Public, et Vectigal. 1. 8. 1. 
 
 f By the Roman law, no individual was allowed to manufacture arms 
 without the special permission of the government. Cod. 1. 10. tit. 46. 
 /.ex unica. Ut armorum u;us inscio prir.cipe inter Jittun sit. T. 
 
 \ fF de Public, et Vect. 1. 16. 11. 
 
 Cod. de Naut. Fcen. 1. 3. 
 
 f Vol 4. Consil. 10.
 
 TREATISE ON THE LAW OF WAR. 99 
 
 his duty to forbid it, and to order his farmer and servants not 
 to do any thing unlawful upon his estate. But, if several 
 owners, as is often the case, ship their goods on board of the 
 same vessel, they have no control over each other, nor over 
 the master who receives the goods on freight. Therefore, the 
 owner of the lawful goods ought not to suffer for what he 
 cannot prohibit; he might, indeed, not have shipped his goods 
 on board of that vessel, but if it was not convenient for him so 
 to do, he cannot be made answerable for the act or fraud of 
 another person.* 
 
 Such is my opinion, and I wish that the several treaties and 
 edicts which I have cited, had spoken more explicidy upon 
 the subject. It will be said, perhaps, that the distinctions 
 which are not therein expressed, are to be tacitly understood, 
 and that thus the treaties and edicts may be interpreted ac- 
 cording to each particular case. I wish that I could be of that 
 opinion; but I fear that it 'cannot be done, because of the too 
 great generality of the expressions. What Albericus Gentilis 
 has written on all these subjects, is full of obscurity and 
 confusion.f 
 
 * By the law of France, if a vessel is captured with contraband on board 
 going to the enemy, the contraband goods only are forfeited, but the vessel 
 and the remainder of the cargo are to be released, unless the contraband 
 articles amount to three-fourths of the cargo, in which case, the whole of 
 the merchandize on board is to be condemned, as well as the ship. Ordin. 
 of the 26th of July 1778, art. 1. 2. Code des Prises, 672, edit. 1784. 
 
 The rule in England, is to condemn only the contraband articles, and to 
 restore the rest of the cargo and the ship, but without freight; provided, ; 
 however, that they belong to a different owner from that of the illicit goods, 
 who did not know of the illegality of the voyage, and was not by himself or 
 his agent, concerned in any fraud or concealment, to impose upon the offi- 
 cers of the belligerent nation, by masking the real destination of the ship, 
 covering enemy's property, or otherwise, and was not acting in violation of a 
 treaty of his own country. The Mercurius, Meincke, 1 Rob. 242. The 
 Mercurius, Geddes, ibid. 70. The Jonge Tobias, ibid. 278. The Princesa, 
 2 Rob. 42 The Rosalie & Betty, ibid. 292. The Franklin, 3 Rob. 183. 
 The Neutralist, 3 Rob. 240. Amer. edit. T. 
 
 f De Advoc. Hispan. 1. 1. c. 20.
 
 10Q TREATISE ON THE LAW OF WAR. 
 
 CHAPTER XIII. 
 
 Of Neutral Goods found on board of the ships of enemies. 
 
 TN the year 1602, after the conquest of Portugal by the 
 -" Spaniards, several Portuguese ships were captured by 
 the Dutch, who were then at war with Spain. Grotius, who 
 relates the fact,* says, " that it was more difficult to decide 
 whether the goods of the Italians which were found on board 
 of the captured ships, were lawful prize," and he adds, " that 
 the matter was decided by a compromise betiveen equity and 
 the law of rvar." That respectable .writer, therefore, doubted 
 whether neutral goods found on board the ships of enemies, 
 were to be considered as enemy goods; but he entertained no 
 such doubt in 1625, when he wrote his treatise De Jure Belli 
 ac Pads; for in that work he expressly says: " That nothing is 
 acquired by the law of war, but what belongs to the enemy, 
 and not the property of neutrals, although it be found on the 
 enemy's territory;" and he infers from thence, that the vulgar 
 saying, "that goods found on board of an enemy's ships are to 
 be considered as belonging to the enemy," is not warranted by 
 the law of nations, but that such are only to be presumed enemy 
 goods, until the contrary is proved. He adds, that it was so 
 decided in Holland, in full court, in the year 1338, while we 
 were at war with the Hanse Towns, and that that decision has 
 passed into a law.f He gives it his approbation in another 
 place, where he treats of the same subject.}: 
 
 I must own, that I blush at my ignorance, for not having 
 been able to find that decision of the year 1338, nor can I un- 
 derstand by what court it was pronounced; for it is a fact of 
 public notoriety, that it was not until near a century aftcr- 
 
 * Hist, Belg. 1. 11. sub anno 1602. 
 t De Jure B. ac P. 1. 3. c. 6. $ 5. 
 \ Not. ad 1. 3. de J. B. ac P. c. 1. 5.
 
 TREATISE ON THE LAW OF WAR. . 1Q1 
 
 wards, that the court of Holland was instituted by Philip 
 of Burgundij* This, indeed, was corrected by Grotius, in a 
 new edition of his book, in which he substituted the year 
 1438 instead of 1338.* But in the latest edition, published in 
 1 632, in the octavo form, (which Grotius himself certifies to 
 be entirely correct), the year 1338 is again mentioned, and 
 this date has been followed by those who have quoted that 
 passage out of his book.f Even my learned friend Barbeyrac 
 has preserved the same year 1338, in his French translation 
 of Grotius, \ and attributes that decree to the states-general^ 
 although they never exercised judicial powers, nor ever were 
 considered as a court of judicature; at any rate, the true date 
 of it must be the year 1438, as Grotius alludes to the Hanseatic 
 war, of which there is a book preserved among the archives 
 of the court of Holland, entitled Oosterlingen. 
 
 Although that decree of the year 1438, has escaped my 
 diligent inquiry, I nevertheless believe Grotius's assertion, 
 without requiring any other proof of the fact, and I can easily 
 conceive how others have followed his opinion on the credit 
 of his character alone, and without its being supported by any 
 other authority. Thus Loccenius\ speaks of the principle 
 which Grotius lays down as being established law, and so do 
 the six advocates whose opinions are recorded in Consilia 
 Belgica.^ I think, however, that they go too far when they 
 seem to intimate that it would be otherwise if public notice 
 
 * In what we believe to be the last edition of Cretins' 's work, Utrecht 1773. 
 the error appears to have been corrected. The decree there is said to have 
 been pronounced in 1438. T. 
 
 I Zoitch, de Jure Fee. p. 2. 8. Q: 25 Consil. Belg. vol. 3. Consil 253. 
 
 \ It is not so in the Amsterdam edition of Barbeyrac's translation, printed 
 in 1724, which Mr. Bynkershoek, it seems, had not before him when he 
 composed this work. The decree there is said to have been given in 
 1438. T. 
 
 Or the Easterlings; by which name the inhabitants of the Hansc Towns 
 were formerly known. T. 
 
 || l?es in fwstittm navibus repertte prcesumuntur esse hostium, donee contrarium 
 probetur. Things found on board the enemy's ships are presumed to belong 
 to the enemy, until the contrary is proved. Loccen, De jfitre Marit. 1. 2. 
 c. 4 n. 11. T 
 
 If Ubi supra.
 
 102 TREATISE ON THE LAW OF WAR. 
 
 had been given that no neutral should ship his goods on board 
 of an enemy's vessel, or if he who shipped them, was ignorant 
 of the war.* 
 
 If by the general law of nations, it is lawful for a neutral 
 to ship his goods on board of an enemy's vessel, I cannot 
 conceive how it can be rendered otherwise by the procla- 
 mation of a belligerent sovereign. I am at liberty to carry on 
 trade with two nations, who are in friendship with me, but at 
 war with each other, unless I am prevented by express or 
 tacit conventions, (as is almost always the case with respect to 
 contraband;} what, then, if one of those nations, without the 
 consent of the other, should prohibit altogether my trading 
 with her enemy? Such an interdiction would be unjust as to 
 all but the subjects of the prohibiting nation. Grotius appears 
 to have been of this opinion,! otherwise he justly thinks that 
 respect is due to the public proclamations of sovereigns, and 
 that they are not to be disregarded with impunity. 
 
 As to the other point, what matters it, whether he who 
 has shipped his goods on board of the enemy's ship, did 
 or did not know of the war? Suppose that he did know of it, 
 and that he also knew that the ship belonged to an enemy, the 
 question will still recur, whether he has acted lawfully or un- 
 lawfully in shipping the goods? These fine spun niceties, 
 although they may serve to make a display of legal ingenuity, 
 cannot fail to be rejected by those who follow the rules of plain 
 unsophisticated common sense. 
 
 Before I express my own opinion, I must first consult the 
 treaties which have been made between different nations upon 
 the subject. As far as I can understand, they nearly agree 
 with the French law, which is laid down by Mornac,\ que la 
 robe dc Vennemi confisque celle de rami. Grotius\\ attempts 
 
 * The same opinion is given in Consil. Belg. vol. 4. Consil. 207. 
 
 f Ubi -supra, not. 4. 
 
 \ Ad 1. Petiull. 1. ff*. locati conduct!. 
 
 " That the poods of an enemy produce the confiscation of those of a 
 friend." The word robe in the old French idiom signified effects, goods, 
 furniture, vxarlng apparel and the like. Poba in Italian, ropa in Spanish, and 
 rcwpa in Portuguese, at this day, mean the same thing. T. 
 
 'In not. ad 1. 3. de J. B. ac P. c. 6. 6.
 
 TREATISE ON THE LAW OF WAR. 103 
 
 to explain away the rigour of this law, and understands it to 
 mean, that if enemy goods are shipped on board of a neutral 
 vessel, -with the consent of the owner of the ship, then the ship 
 herself, though neutral, is liable to confiscation.* But this is 
 not the subject before us, and will be treated in the next 
 chapter. If, however, the consent of the owner of the vessel 
 is the cause of her confiscation, why do we not confiscate 
 neutral goods, which, with their owner's consent, are shipped 
 on board of an enerny^s vessel? Of this, Grotius has said 
 nothing, and yet the rule of reciprocity required that the 
 same law should be applied to both cases. 
 
 But if, setting aside for a moment these considerations, we 
 turn to the treaties themselves: we shall find that they all 
 simply stipulate, that " neutral goods found on board of an 
 enemy's vessel, are liable to confiscation."! In this they have 
 adopted the principle of the old French law, which confiscates 
 the goods of neutrals merely because they are found on board of 
 the vessel of an enemy,:): and therefore do not agree with what 
 Grotius states to have been decided by the court of Holland^ 
 
 * But Valin rebukes him strongly for entertaining this opinion. " Grotius," 
 says he, " pretends that our ordinances are to be understood with this re- 
 striction; it would, if it were admitted, furnish an excuse to the neutral 
 master, with which he never would fail to elude the confiscation of his 
 vessel and the remainder of his cargo." Valin, Traiie" dcs Prises, p. 64. 
 
 There is no doubt that such was the ancient law of France, and that it 
 confiscated alike neutral goods found on board the enemy's ships, and 
 neutral ships carrying enemy's goods; so true it is, that injustice has always 
 followed power. T. 
 
 f Marine treaty between Spain and the states-general of the 17th De- 
 cember 1650, art. 13. Treaty of commerce between France and the states- 
 general of the 27th of April 162, art. 35. Treaty between the same 
 powers of the 10th of August 1678, art. 22. Of the 20th of September 
 1697, art. 27. llth of April 1713, art. 26. Between England and the states- 
 general, 1st of December 1674, art. 8. Sweden and the states-general of 
 the 26th of November 16/5, art. . And 12th of October 1679, art 22. 
 
 \ But by the same treaties, as will be seen in the next chapter, it was 071 
 the other hand stipulated that enemy's goods found on board of neutral 
 ships should not be liable to confiscation, or in other words, that free ship* 
 should make free goods; so that if, in one respect, they were conformable to 
 the old severe law of France, they established upon the whole, the more 
 equitable principles of the modern ICIK of natior.g. T.
 
 104 TREATISE ON THE LAW OF WAR. 
 
 and to have obtained the force of a law. It is true, that the 
 treaties which I have related are subsequent, and that the) 
 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 saH, to trade with your enemy; and 
 if so, I may likewise enter into any kind of contract with him, 
 buy, sell, let, hire, &c. Therefore, if I have engaged his vessel 
 X < 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? All that I am bound to do, is, to prove that they are 
 really mine; for here I agree with Grotius, that there is some 
 room for presuming, that goods found on board of an enemy's 
 vessels are the property of the enemy. 
 
 But what shall we say, if the owners of the goods knew and 
 consented that they should be shipped on board of the vessel 
 of their friend, indeed, but of your enemy? I should think 
 that this knowledge and consent do not authorize a confisca- 
 tion. The matter depends upon this only question, whether 
 the owners of the goods, in shipping them on board of an 
 enemy's vessel have acted lawfully or unlawfully? I have 
 contended for the former position, because, as I may lawfully 
 carry on any kind of trade with your enemy, I think that I 
 may therefore enter with him into any kind of contract, and 
 make use, for a valuable consideration, of his ship for my 
 own utility. Take, if you can, every thing which belongs to 
 your enemy, but restore to me what is my own, because 1 am 
 your friend, and in shipping my goods, I have not intended to 
 do you any injury. 
 
 With what I have said, nearly agrees what is laid down 
 in the Consolato del Mare, to wit: " that the enemy's ship 
 when taken, belongs to the captors, and the neutral goods to 
 the owners thereof, but that those owners may, if they are 
 present, compound for the purchase of the vessel, and thus be
 
 TREATISE ON THE LA.W OF WAR. 105 
 
 enabled to prosecute their voyage.* If, however, a composition 
 does not take place, the vessel may be carried into a port of 
 the captor, but still the goods are to be restored to their 
 owners, on paying the freight thereof, in the same manner as 
 if the voyage had been performed." I approve of this general 
 doctrine; but what is said there on the subject of freight, I can- 
 not admit to be founded in law. I understand very well, that 
 he who has taken the vessel, has also taken all the right 
 arising out of it which belonged to her or to the master; but 
 the freight was not due to the ship, nor to the captain, unless 
 the goods had been carried to their destined port.f The ques- 
 tion, however, is asked, whether, if a ship is taken in the 
 course of her voyage, the owner of the goods on board is 
 obliged to pay freight to the captor? I answer, that if the captor 
 is ready to carry the ship with the goods to the place of their 
 destination, I think that he is entitled to demand his freight, 
 otherwise I am of opinion that he is not. The shipper is suffi- 
 ciently punished for his imprudence, in putting his goods on 
 board an enemy's vessel, when he is obliged to claim them at 
 his own expense, and to carry them away at his own risk. I 
 have shewn, in a former chapter,:}: that difficult questions will 
 arise respecting this matter of freight, and that it requires a 
 sound judgment to form a correct opinion upon them. 
 
 * Consol. del Mar. c. 27.3. This chapter has been elegantly translated into 
 English, by the learned Dr. Robinson, and is bound together with his inter- 
 esting' collection, entitled, Collectanea Maritima, London, Butler-worth 1801- 
 The passage referred to by our author, is in that translation marked 6 & 7. 
 In M. Boucher's French translation, it is c. 276. 1012, 1013, vol. ii. p. 511. 
 
 j- This doctrine of our author is fully recognised in England, where the 
 captor of an enemy's ship is not considered as entitled to freight on neutral 
 goods, unless he has carried them to the port of their destination. The 
 Fortuna, 4 Rob. 228. Am. edit. It is, however, allowed in certain cases, 
 when the goods are brought to the claimant's own country. The Diana, 
 5 Rob. 64. Am. edit. 
 
 | C. 10. pt 80.
 
 106 TREATISE QN THE LAW OF WAR. 
 
 CHAPTER XIV. 
 
 Of Enemy's Goods found on board of neutral ships. 
 
 IF a neutral ship be taken, having enemy's property on board, 
 two questions are to be considered: the one, whether the 
 neutral ship itself, the other, whether the enemy's goods arc 
 liable to confiscation? 
 
 As to the first question, if we follow the ancient law of 
 France, a neutral ship will be liable to confiscation for carry- 
 ing enemy's goods. That such was the law of France, in 
 ancient times, is clear, by the exemption from it granted to the 
 Hanse Towns, in their treaty with that country of the 10th of 
 May 1655. Grotius, in the passage mentioned in the preceding 
 chapter, is of opinion, that the French law does not extend 
 farther than to the case of a neutral ship, the owner of which 
 knowingly receives enemy's goods on board,* relying on that 
 law of the Digest\ in which, as I have said above, \. a dis- 
 tinction is made between the master's knowing and his being 
 'ignorant of unlawful goods being laden on board of his ship; 
 in the first case, but not in the second, the law directs the ship 
 to be confiscated. Loccenius also distinguishes the present 
 case in the same manner. 
 
 * See the note * p. 103. 
 
 | Dominus navis, si UlidtZ illiquid in nave, vel ipse, <vel vectores impositerint,. 
 weis quoquefisco vindicatur. Quod si absente Domino, d magistro <vel guberna- 
 tore out proretd nautave aliquod id Jactum sit: ipsi quidctn capite puniuntu> , 
 commitsis mercibus, navis ;i.,-.V7w Domino restitititur. If the owner of the 
 ship or any. of the passengers shall put any thing unlawfully on board, 
 the ship shall also be confiscated. If, however, it shall have been done in 
 the absence of the owner, by the master, mate, or some of the mariners, 
 they shall be capitally punished, and the goods shall be confiscated, buttho 
 ship shall be restored to the owners, ff. rfe Pub'ic. \$ l r cctig. 1. 11. 2. 
 
 1 C. 12. p. 94 
 
 $ Ubi .nipra.
 
 TREATISE ON THE LAW OF WAR. 107 
 
 This distinction of Paulus* between the knowledge and 
 ignorance of the master of the ship, is certainly very im- 
 portant, and has been very much attended to in the Roman 
 law, but now is hardly of any force if the vessel belongs to the 
 master himself; for it is generally he who receives the goods, 
 and who attests their shipment by an instrument commonly 
 called a bill of lading. It is of greater use, if the ship belongs 
 to other owners than the captain, and he has received the 
 goods without their knowledge, as I have already shewn in 
 another place, f It may, however, be doubted, whether other 
 owners, if they have given a special authority to the master to 
 take goods on freight, and he has shipped unlawful merchan- 
 dize, are not bound for his act? In general the rule is, that he 
 who entrusts an unfit person with his business, is answerable 
 for his faults and for the frauds that he commits; and if a dis- 
 tinction is made between the master and another owner of the 
 vessel, the question will present itself in a pretty difficult point 
 of view. But this is not the ground that I go upon. I am wil- 
 ling to admit, that the owners of the ship are bound for the 
 act of the master, even without having given him a special 
 authority; that the receiving of the goods was ordered by the 
 owner himself, and that he knew in every case what goods 
 were shipped on board of his vessel, and to whom they be- 
 longed; notwithstanding all that, I see no reason for confis- 
 cating the ship, merely for having enemy's property on board, 
 whether or not the owner knew of or gave his consent to it. 
 
 I do not grant to Grothts, that the case which Paulus speaks 
 of in the passage which he cites, extends to that which we are 
 now contending about. Not because in those things which 
 depend solely upon reason, the principles of the law of nations 
 may not safely be sought for in the rules of Roman jurispru- 
 dence, but because the doctrine of Paulus has no application 
 here. He only speaks of a master of a vessel, who, knowingly 
 or unknowingly, carries goods in fraud of the revenue. In that 
 case, it is true, that if the master acts with full knowledge of 
 the circumstances, he employs his vessel and his labour for an 
 
 * The author of the abovementioned passage in the Digest. T. 
 
 | Above, c. 12. p. 96.
 
 108 TREATISE ON T&E LAW OF WAR. 
 
 unlawful purpose, and she is justly liable to confiscation; for 
 he who conceals and knowingly carries on board of his vessel, 
 goods which ought to be declared for the purpose of paying 
 the duties thereon, commits a fraud upon the public. And 
 therefore, at present, by the laws of almost every country, 
 ships which are employed in defrauding the revenue, are con- 
 fiscated, for no other reason than that they are employed in an 
 illegal act. 
 
 I have myself adopted the same distinction of Paulus, with 
 respect to contraband goods,* and have given it as my opinion, 
 that if such goods were shipped on board of a neutral vessel, 
 to be carried to the enemy, with the knowledge of the owners, 
 the ship itself is also liable to be confiscated, unless there 
 should be treaties to the contrary; because the owners in such 
 a case are concerned in an act prohibited by law. 
 
 But now, let us pause and consider, whether he is guilty of 
 any offence against the law of nations, who carries on board 
 of his vessel the goods of his friend, although that friend is 
 your enemy? By what right will you, who are my friend, cap- 
 ture my ship, merely because she carries your enemy's goods: 
 I, who am a friend to both parties, shall serve them both, in 
 those things that are not hurtful to either, and in the same 
 manner both will serve me in things that are indifferent. On 
 this principle, your enemy may with propriety hire his vessel 
 out to me, and I am at liberty to hire mine out to him. Of 
 those who act thus innocently and without fraud, I have 
 treated more at large in the preceding chapter, and if what I 
 have said there is correct, there is no need of saying any more 
 upon this question, but it must be laid down as a principle, 
 that a neutral vessel is not liable to be confiscated for having 
 enemy's goods on board, whether the owner of the vessel knew 
 of it, or not; because, in either case, he knew that he was en- 
 gaged in a lawful trade; and in this his case differs from that 
 of him who knowingly carries contraband goods to the enemy. 
 Wherefore, on the present question, I do not admit the appli- 
 cation of the distinction made by Paulus; but I approve of the 
 
 * Abovfc, p. 96.
 
 c 
 
 TREATISE ON THE LAW OF WAR. 1Q9 
 
 opinion which was given in general terms by the Dutch lawyers, 
 and is recorded in the Consilla Belgica,* that a neutral ship, 
 although laden with enemy's goods, is not liable to confiscation, 
 
 We will now proceed to consider the second question, 
 whether the enemy's goods themselves, taken on board of a 
 neutral vessel are liable to confiscation? Some will wonder, 
 perhaps, that any doubt should be entertained about itf as it 
 is clearly lawful for a belligerent to take the property of his 
 enemy. And yet, in all the treaties which I have cited in the 
 preceding chapter,! there is an express stipulation, that 
 u enemy's goods found on board of neutral vessels, shall be 
 free," or, (as we commonly express it), that free ships shall 
 make free goods, except, however, contraband of war, when 
 carrying to the enemy. And what will be thought more 
 astonishing is, that among those treaties there are four to 
 which France is a party, and according to them, even enemy's 
 goods laden on board of neutral vessels are not liable to con- 
 fiscation; much less, therefore, ought the neutral vessel to be 
 confiscated, on board of which they are shipped. So that it 
 must be said, either that the principle of the old French law 
 which I have above mentioned, has been entirely abandoned, 
 or, what is more probable, that those treaties are to be con- 
 sidered as exceptions to it. However this may be, we are 
 bound, in the discussion of general principles, to attend more i 
 to reason than to treaties. And on rational grounds, I cannot 
 see why it should not be lawful to take enemy's goods, al- 
 though found on board of a neutral ship; for in that case, what 
 the belligerent takes is still the property of his enemy, and by 
 the laws of war, belongs to the captor. 
 
 It will be said, perhaps, that a belligerent may not lawfully 
 take his enemy's goods on board of a neutral vessel, unless he 
 should first take the neutral vessel itself; that he cannot do this 
 
 & 
 
 without committing an act of violence upon his friend, in order 
 to come at the property of his enemy, and that it is quite as 
 unlawful as if he were to attack that enemy in a neutral port, 
 
 I - 
 
 * Vol. 4. Consil 206. n. 2. 
 
 f Above, p. 103,
 
 110 TREATISE ON THE LAW OF WAR. 
 
 or to commit depredations in the territory of a friend.* But 
 it ought to be observed, that it is lawful to detain a neutral 
 vessel, in order to ascertain, not by the flag merely, which may 
 be fraudulently assumed, but by the documents themselves 
 which are on board, whether she is really neutral. If she ap- 
 pear tolje such, then she is to be dismissed, otherwise, she 
 may be captured. And if this is lawful, as on every principle 
 it is, and as it is generally practised, it will be lawful also to 
 examine the documents which concern the cargo, and from 
 thence to learn, whether there are enemy's -goods concealed 
 on board, and if any should be found, why may they not 
 be captured by the law of war? The Dutch lawyers, whose 
 opinion I have already cited,f and the Consoiato del Mare, in 
 the chapter above referred to,^: are equally clear upon this 
 point. According to them, the neutral ship is to be released; 
 but the enemy's goods are to be carried into a port of the 
 captor, and there condemned.^ 
 
 * It is worthy of observation, that our author, while lie supports the bel- 
 ligerent principle, on the long agitated question, whethei-yj-ee ships " do or 
 do not make free goods," tacitly admits, that neutral vessels are entitled to be 
 considered as neutral territory, a proposition which Mr. Hubner thought so 
 self-evident, that he did not think it worth while (though he professedly 
 wrote in favour of the neutral doctrine) to devote a single page of his work 
 to its proof and development. Hubn. de la Saisie &c- vol. 1. p. 211. This prin- 
 ciple being admitted, the question is reduced to the single point: " Whe- 
 ther the right of taking enemy's property on board of neutral vessels, 
 r.ecessarlly follows as a consequence of the right of search, for the purpose 
 of ascertaining their neutral character?" On this point alone, the whole of 
 our author's argument turns, and he maintains the affirmative; but like 
 Hubner, he takes his proposition for granted, without taking any pains to 
 demonstrate it. On the whole, he must be considered as having made a 
 very important concession in favour of neutrals, and having greatly nar- 
 rowed for them the field of that celebrated controversy. T. 
 
 f Consil. Belg. ubi supra. 
 
 \ C. 273. 2. of Mr. Robinson's translation, and c. 276. 1004. of that of 
 M. Boucher. T. 
 
 Above, p. 104. This opinion of our author is adopted, as we have shewn be- 
 fore, p. 105. in the case of neutral goods found on board of an enemy's vessel; 
 but the contrary rule universally takes place in the case of enemy's goods 
 taken on board of a neutral ship, in which case, as we have observed above, p. 
 81, the owner of the vessel is entitled to his freight, though he has not 
 Carried the goods to the place of their destination. Sucli is the opinion of
 
 TREATISE ON THE LAW OF WAR. 
 
 Those authorities say further, that the captor must pay the 
 freight to the master of the vessel, but I do not think that 
 opinion reasonable, because freight is not due, unless the 
 goods have been carried to their port of destination. It may, 
 indeed, be said, and with great truth, that it was not the fault 
 of the master, that he did not carry them; but it must be said 
 also, that when he took enemy's goods on board of his ship, 
 he did it at his own peril, as he must have known that they 
 might be taken, and thus be carried into a port of the captor. 
 Therefore, he has no cause to complain, if his ship be merely 
 dismissed without paying him any freight; unless it should be 
 agreed between him and the captor, that he should carry the 
 enemy's goods to the place of their destination, and thus have 
 hired his vessel out to the captor himself. I have argued on this 
 same principle in the preceding chapter, but in a case directly 
 opposite; being that of neutral goods and an enemy's vessel.* 
 
 I shall not now turn to the particular cases in which this 
 subject has been discussed. The reader, if he approves of the 
 principles which I have laid down, will be able to form a cor- 
 rect judgment of what is said by Albericus Gentilis^ and 
 Zouch^ on the same question, and of the controversy, which, 
 as the latter relates, was once agitated with so much warmth 
 between the English and the Zealanders.^ Zouch, himself, is 
 
 Vattel, which is at this day generally considered as law." Si ran trouve sur 
 un vaisseau neutre des effets appurtenants aux ennemis, on s'en saisit par le droit 
 de la guerre.- mais naturellement on doit payer le fret au maitre du vaisseau, 
 qtii ne peu t souffrir de cette saisie. If on board of a neutral vessel, goods are 
 found belonging to the enemy, they are seized by the law of war: but 
 naturally, the freight is to be paid to the master of the vessel, who cannot 
 sufferfrom that seizure." Vatt. L. of N. 1. 3. c. 7. 115. Such is also the rule 
 in England, though very much restricted, and rendered almost illusory in 
 practice. The Atlas, 3 Rob. 243. Am. edit, in not- The mamiel t 1 Rob. 249 
 The Rebecca, 2 Rob. 84. The Immanuel, ibid. 172- Am. ed. 
 
 The reason of this rule is very plain, enemy's goods are not, like contra- 
 band, seized and confiscated, ex delicto, but merely ex re; for, he who carries 
 enemy's property, is not guilty of any offence against the law of nations, as 
 our author himself has ably demonstrated, above p. 108. T. 
 
 Above, p. 105. 
 
 f De Advoc. Hispan. 1. 1. c. 28. $ De Jure Fee. p. 2. $ & Q. 6. 
 
 It is related by Zouch, that in the year 1576, the merchants of the 
 Spanish Netherlands, bein$ in the habit of carrying on their commerce wit!
 
 112 TREATISE ON THE LAW OF WAR. 
 
 of opinion, that the neutral vessel ought to be released, and 
 the enemy's goods confiscated; but, he thinks that freight 
 ought to be paid to the master, in which he agrees with the 
 Consolato del Mare y but not with me. He is, however, for 
 allowing such freight only pro raid itmeris peracti.* If his 
 doctrine were correct, as in my opinion it is not, it would 
 be very difficult to explain this restriction, on satisfactory 
 principles.f 
 
 After writing thus much, the works of the learned He'inec- 
 cius have come to my hands, arid among them his dissertation 
 " On the confiscation of ships for carrying prohibited goods "\ 
 in which he briefly considers the two questions which are 
 the subject of this and the preceding chapter. The perusal 
 of that treatise has not induced me in the least to alter my 
 opinion; I am, on the contrary, confirmed in it by the authority 
 of so great a man. If the reader will take the trouble to com- 
 pare what has been said by each of us on the same subject, he 
 will be satisfied of the reason why I have not thought it neces- 
 sary to make any alteration in this chapter, or in that which 
 immediately precedes it. 
 
 Spain, then at war with the United Provinces, under cover of the English flag, 
 the privateers of Zealand captured several English vessels engaged in that 
 trade, and had them condemned as prize in their court of admiralty. He adds, 
 that the English complained of it, and by way of retaliation, detained the 
 ships of the Zealanders which they found in the ports of England, and im- 
 prisoned their commanders. But the prince of Orange prevailed upon the 
 ijueen to accept of a compromise, by which the property taken was restored 
 on both sides. Zouch, ubi suprd. T. 
 
 * In proportion to the voyage performed. T. 
 
 \ We have shewn in former notes, p. 81. 110. that contrary to the opinion of 
 our author, freight is generally allowed to the neutral master in the prize-- 
 courts of Europe. And it is not only paid to him, as Zouch would have it, 
 pro ratd itineris, but in toto, and us if the whole voyage had been performed. 
 The reason given for it, which appears founded on very sound principles, 
 is, " that the captor represents his enemy, by possessing himself of his 
 goods, jure belli; and that, although the whole freight has not been earned 
 by the completion of the voyage, yet, as the captor, by his act of seizure, 
 has prevented its completion, his seizure shall operate to the same effect 
 as an actual delivery of the goods to the consignee, and shall subject him 
 to the payment of the full freight." The Copenhagen, 1 Rob.245. Amcr. edit. T 
 
 4 De navibus ob veeturam vetitarum mtrciimi cvmrniasia. C. ?. 9.
 
 TREATISE ON THE LAW OF WAR. 113 
 
 CHAPTER XV. 
 
 Of the Right of Postliminy on neutral territory. 
 
 TT has been questioned whether this right extends to persons 
 *- or things, which, after being taken by an enemy, are 
 carried by him into the territory of a neutral. It might be 
 supposed that this question is settled by that passage from the 
 Digest, in which Pomponius says, " that one of our people who 
 has been taken by the enemy, is understood to be returned 
 among us, if he arrives among our friends or upon our ter- 
 ritory;"* and as the same law which, on the subject of post- 
 liminy, applies to persons, applies also to things, there does 
 not appear to be any further room for controversy; for it seems, 
 that under the general denomination of friends , Pomponius 
 has meant to include neutrals, who are certainly entitled to 
 that appellation. But Grotius construes it in a different man- 
 ner;! ne thinks, and in my opinion justly, that by the word 
 friends are not generally to be understood, all those who are 
 at peace with us, but only those who are engaged with us in 
 the same zvar. He gives the same interpretation to what is 
 said by Paulus, that " those are considered as having returned 
 to us by right of postliminy, not only who have actually entered 
 our territory, but who have arrived within the dominions of a 
 friend or ally; because there they begin to be under the safe- 
 guard of the public faith.":j: 
 
 If we take the words " OR an ally" conjunctively, (which 
 we may, perhaps, do, in the same manner that we frequently 
 construe a conjunctive into a disjunctive}, Paulus^s opinion will 
 support the interpretation of Grotius; for an ally certainly 
 
 * fF. de Capt. & Postlim. Revers. 1. 5. 1. 
 t De J. B. ac P. 1. 3. c. 9. 2. n. 1 and 2, 
 \ ff. vt suprd, 1. 19. 3. 
 
 IP
 
 114 TREATISE ON THE LAW OF WAR. 
 
 comes within the description of the word friend. If, however, 
 we take it in the disjunctive sense, it will be sufficient that it 
 be a neutral or friendly \ though not an allied nation. Of this 
 opinion is Albericus Gentilis;* but he is clearly in the wrong; 
 because the reason which Paulus gives, that the person who 
 was taken begins, when on a friend's territory, to be under the 
 safeguard of the public faith, applies as well and rather more 
 to an ally than to a mere friend. 
 
 Of the same opinion with Grotius, and before him, was 
 Antonio de Gama,^ whom Gentilis on that account undertook 
 to refute. Zouch,\ according to his custom, contents himself 
 with relating the different opinions of others, and gives none 
 himself, though he rather appears to incline to that of Gentiiis. 
 As to Grotius, he supports what he says merely by the au- 
 thority of precedents, without adding a single argument of his 
 own. " Among those," says he, " who are friends, but not 
 allies, prisoners of war do not change their condition, unless 
 it be so specially agreed by treaty," and by way of example, 
 he immediately quotes the second treaty between the Cartha- 
 ginians and Romans;^ but Zouch very properly observes, 
 that it does not sufficiently appear whether what the two 
 nations agreed upon together is to be considered as a de- 
 claration of the law of nations, or as an exception to it. In 
 various treaties, among the most ancient as well as the most 
 modern, this is a question which it is often difficult to decide; 
 and it is always dangerous to infer the law of nations merely 
 from treaties, without also consulting reason. Grotius adds, in 
 his notes, that it appears from Thuanus, that the king of Fez 
 and Morocco was of the same opinion with him; but no one 
 will be willing to be instructed by such masters in the law of 
 nations. 
 
 * De Advoc. Hisp. 1. 1. c. 1. 
 
 f Decisiones Lusitanicie, 384. 
 
 \ De Jure Fee. p. 2. 8. Q. 2. 
 
 It was stipulated by that treaty, that if the prisoners made by the 
 Carthaginians on some nation in friendship with the Romans, should come 
 into the countries under the Human dominion, they might be reclaimed, 
 and should again become free; and that the friends of the Carthaginians 
 should have the same right within the Punic dominions. Grot- ubi supra.
 
 TREATISE ON THE LAW OF WAR. H5 
 
 As to other writers, Huberus* is of the same opinion with 
 Grotius, when he understands by the word returned, one who 
 is come back into the territory of an ally. Hertius\ agrees 
 also with him, and considers the right of postliminy as not 
 being founded on the law of nations, but on municipal law. 
 He decides on the question so often discussed among nations, 
 " whether a prisoner of war, or captured property, which is 
 brought into a neutral country, are entitled to their liberty by 
 the right of postliminy?" He maintains that they are not; 
 " because," says he, " neutrals are bound 'to take the fact for 
 the law? and therefore cannot say that the capture was illegally 
 made.":}: 
 
 But, indeed, if we chuse to consider this subject by the 
 mere light of reason, this question appears to me so idle, that 
 I wonder that it has exercised the minds of so many writers. 
 He who returns among the allies of his sovereign, is entitled 
 to the right of postliminy, because he is considered as having 
 returned to his own country, for allies are considered as 
 making but one state with ourselves. Certainly they are not 
 to be considered as separate nations in respect to the war in 
 which they unite their forces and mutual assistance. There- 
 fore, by the word friends, which Pomponius\\ makes use 
 of, I would understand those who are such in the highest 
 degree, that is to say, who are in alliance with us against the 
 same enemy; and by Paulus's expression,^} " a. friend or 
 
 * De Jure Civilatis, 1. 3. 4. c. 5. n. 11. 
 
 f Adnot. ad Puflend. De Jure N. and G. 1. & c. 6. n. 25. 
 
 \ Such is also the opinion of all the modern writers, and particularly of 
 Vattel. Le droit de postliminie n'a point lieu chez les peupks neutres; car quiconque 
 <veut demeurer neutre dans une guerre est oblige de la consldtrer quant a ses 
 ejfcts, comme tgalement juste de part & d'autre, Cf par consequent de regarder 
 comme bien acquis tout ce qui est pris par I'un ou I'autre parti. The right of 
 postliminy does not take place among neutral nations; for whoever will re- 
 main neutntl in a war, is obliged to look upon it, as to its effects, as being 
 equally just on both sides, and consequently to consider as a lawful 
 acquisition whatever is captured by either party. Law of Nat. 1. 3. c. 
 14. 208. 
 
 Unam constituunt Civitatem- See the Her.rlck and Maiia, 4 Rob. 49. 
 Ajner. edit. T, 
 
 || Above, p. 113. - U Ibid,
 
 116 TREATISE ON THE LAW OF WAR. 
 
 I would understand him, who is at the same time in friend- 
 ship and in alliance with us; for otherwise, it would have 
 been sufficient to have made use of the word friend.* With 
 such alone, because of the alliance, the right of postliminy 
 
 * The doctrine of postliminy, among the ancient Romans, applied prin- 
 cipally to persons, it being the practice at the time when that country 
 flourished, to make slaves of prisoners taken in war. To such, Pomponius 
 and Paulus particularly meant to apply their principles on this subject, and 
 therefore, it is not easy to refer them to the case of ships and goods taken 
 at sea in a modern maritime war. Nor does it sufficiently appear whether 
 those authors meant to speak of prisoners who made their escape into a 
 friendly or allied country, as well as of those who came thither in the pos- 
 session of their masters who had purchased them from the captors. It is 
 possible, that a different rule might have obtained in each of these different 
 cases. The civilians take too much pains to apply the principles of the 
 Roman law to every case that presents itself; not considering, that the dif- 
 ference between ancient and modern manners renders them, in many 
 instances, little susceptible of a direct application. 
 
 There would be, in our opinion, little difficulty in settling this question 
 of postliminy on neutral territory, if a proper attention were paid to the 
 distinction which the law has established between military and civil 
 rights. We call military rights those which belligerents acquire in war, 
 by capture or conquest, to the property of their enemies, and civil rights, 
 those which are acquired out of war by contract or otherwise. These dif- 
 ferent rights receive a different kind of proof. Military rights are evidenced 
 by possession, and civil rights by the ordinary proofs of title. A prize, there- 
 fore, which is brought into a neutral territory, in the possession of the captors 
 or of their agents, does not return to its former owner, by the law of 
 postliminy, because neutrals are bound to take notice of the military right 
 which the possession evidences. But they are not bound to receive any 
 other proof of it than the possession itself; for with the mere -right of 
 property of the captor they have nothing to do; the right of possession is the 
 only thing that they cannot controvert, and in that, as Hertius says, they 
 are bound to take the fact for the lavs. If, therefore, a vessel, after cap- 
 ture, should escape, or be brought into a neutral territory by others 
 than the captor, his agents, or those who otherwise lawfully claim under 
 him, as there is no longer any legal evidence of the military right, no fact 
 which is to be taken for lav:, the civil right of the former owner revives, 
 and the property returns to him by the law of postliminy. We do not mean 
 to speak here of property regularly condemned in the tribunals of the 
 captor; such a condemnation converts the military into a cm/ right, of 
 which the sentence is the legal evidence. 
 
 For want of attending to these distinctions, the broad and unqualified 
 propositions of our author have led many into an error. 7*.
 
 TREATISE ON THE LAW OF WAR. H7 
 
 takes place, but with those who are merely friends to both 
 parties, the state or condition of our citizens, or of our 
 property, does not change, because there is no reason for it. 
 Wherefore, I wonder that Gentilis and others have been of 
 opinion, that every thing which is brought into the dominions 
 of a neutral country, returns by postliminy, and as a conse- 
 quence thereof, that prisoners carried into the territory of a 
 friend, become free.* 
 
 This doctrine, as to prisoners, is roundly asserted by 
 Joannes de Immolarf and Petrinus Bellw,\ with whom Zouch 
 appears to concur in sentiment.^ But the contrary is so plain, 
 that even sceptics hare never seriously entertained a doubt of 
 it; for all unanimously agree, that a right of property is ac- 
 quired by capture in war, and that that right continues in the 
 country of a friend. And if it be true, that the prizes which 
 I have taken, and the prisoners that I have made, remain my 
 property, by what right shall a prince, who is my friend, take 
 from me those things which belong to me, plena jure, and give 
 
 * By the law of nations, as at present understood, the right of postliminy 
 takes place with respect to persons, even in a neutral country. For the mo- 
 ment that a prisoner sets his foot on neutral territory, no force whatever of 
 the belligerent can protect him. " A privateer," says Vattel, " carries his 
 prize into a neutral port, and there freely sells it; but he would not be 
 allowed to put his prisoners ashore, in order to confine them; for to Jeep or 
 detain prisoners of war, in order to confine them, is a continuation nf hostilities." 
 Law of Nat. 1. 3. c. 7. 132. True, the captor may confine them on board 
 of his ship, even though in the neutral's port, or within his jurisdiction; 
 because a ship is considered as it were a part of the territory of the 
 sovereign to whom it belongs. (See above, p. 109, 110.), but beyond that, 
 no force can lawfully be exercised by a belligerent on persons in a neutral 
 country. 
 
 If, however, a passage should be granted to a body of land troops through 
 a neutral territory, there is no doubt that they might keep under confine- 
 ment the prisoners that they had with them. For this power would be 
 incident to the right of passage, which otherwise would not be effectually 
 granted. And an army (as well as a fleet) is considered, wherever it may 
 be, in many respects, as a presidium of the nation to whom it belongs. See 
 above, p. 29. T 
 
 f Consil. 50. 
 
 4 De Re Militari, p. 2. tit. 18. n. 1?. 
 
 De Jure Fee. p. 2. $ 9. Q; 8.
 
 118 TREATISE ON THE LAW OF WAR. 
 
 them up to another, though he be equally his friend? It is suf- 
 ficiently clear, that he cannot do it without injuring me. Nor 
 can he do it by his courts of justice, for he cannot lawfully 
 judge between me and my enemy, without the agreement of 
 both.* As therefore, what is taken in war remains the pro- 
 perty of the captor, though in a neutral country, the Swedish 
 ambassador was wrong, when, in the year 1657, he claimed 
 certain letters of his, which had been intercepted by the Danes, 
 with whom his sovereign was at war, and delivered to the 
 states-general, who were his friends; contending that, by that 
 delivery they had again become his own.f 
 
 Treaties, however, are sometimes made between sovereigns 
 on a different principle, as was the case formerly between the 
 Romans and Carthaginians, by the second treaty which Grotius 
 quotes from Polybius. And thus, by the 20th article of the 
 treaty of peace between the king of Portugal and the states- 
 general of the 6th of August 1661, it was stipulated^ that 
 " what should be taken by the enemy of either, and carried 
 into the port of the other, if demanded within a certain time, 
 should be restored." But such conventions cannot be made 
 without injury to him who carries his prizes into the territory 
 of his friend as into a safe place. Therefore, they effect no 
 change in the principles of reason, or of the law of nations. 
 For more upon this subject, see Cunceus's dissertation DC 
 Causa Postliminii, and Loccenius, De Jure Maritimo,\ where 
 the arguments of Cunceus are briefly stated. II 
 
 * As between the belligerents, the neutral is bound to see right wherever 
 he sees possession: of a right unaccompanied witli possession, he cannot 
 take notice. We mean to speak only of rights acquired by or founded on 
 the law of war, for of other rights he may judge as if no war existed. T. 
 
 f Aitz. 1. 37. Because the possession of the captor continued in the 
 hands of his donee; and because such things as letters and the like, when 
 taken in war, do not require a sentence of condemnation to divest the right 
 of property of the first owner. Statim capientium funt. T. 
 
 \ L. 2. c. 4. n. 6. 10. 
 
 || Ut enim victor intrd propria prxsidia tutus est, ita si amid Jidem elegerit, 
 & in sua prxsidia se et sua contultrit, etiam illic publico nomine tutus est. 
 Serum est atque inutile, hostem tentare in aiieno ttrritorio vi suum alteri 
 ni/iniere; out cum communi amico agere, ut sibi restituat, Nihil enim hostile aut
 
 TREATISE ON THE LAW OF WAR. 119 
 
 This, however, is true only as to captures made in a just 
 war, for if any thing has been taken by pirates, it is by all 
 means to be restored to the former owners; and so it has been 
 stipulated in various treaties between different nations.* And 
 it is a rule generally adopted among all the nations of Europe, 
 that a capture by pirates does not change the property, which 
 subject has been treated more at large by others, as I shall 
 shew hereafter.f 
 
 Agreeably to these principles, if my property, captured by 
 enemies, comes into the territory of an ally, it returns to my 
 use, and hence it is considered as if it had been delivered by 
 my ally from the common enemy. And yet, the French in a 
 similar case, formerly acted on a different principle, in con- 
 sequence of which, the states-general, on the 4th and 5th of 
 December 1637, decreed, that the same should be done with 
 respect to them4 
 
 violcntum vet ipse molietur, <cel alterum agitare in suos fines contra alterum 
 patietur, quern FIDE PUBLICA in portum suum admisit. The same safety 
 that the conqueror finds in his own fortresses, he will find in the dominions 
 of his friend; if reiving upon his honour, he has put himself and what be- 
 longs to him into his power, the public faith will protect him there. In vain 
 shall his enemy endeavour to retake by force what was taken from him, or 
 to prevail upon the neutral sovereign to restore it to him. The neutral 
 sovereign will not commit an act of hostility against his friend, whom 
 he has admitted into his country under the protection of the public faith; 
 nor will he suffer any other person to hurt him within his territory. 
 Loccen. ubi supra, in Scriptor. de jfure Nautico 3* Marit. Fascicul. vol. ii. p. 
 976. We have thought that our readers would not be displeased with our 
 transcribing this beautiful passage out of the writings of one of those 
 Northern professors, against whom sir James Marriott has so unjustly and so 
 illiberally vented his spleen. Vide hit decree in the case of the ship Columbus, 
 in the first volume of Collectanea Juridica- T. 
 
 * Treaty between the emperor of Morocco and the states-general, of the 
 24th of September 1610, art. 4. Treaty of peace between the United Pro- 
 vinces and Portugal, of the 6th of August 1661, art. 20. Treaty of commerce 
 
 between France and the states-general, of the 27th of April 1662, art. 45 
 
 Treaty of peace between England and the states-general, of the 14th of 
 September 1662, art. 11. 
 
 f Post, c. 17. 
 
 | Aitz. 1. 21. 24. 
 
 Aitzema relates, that France being in alliance with Holland, and both 
 being at war \vith Spain, the French had refused to restore to the Dutch
 
 120 TREATISE ON THE LAW OF WAR. 
 
 It is more doubtful, whether a captor may in a neutral 
 territory, sell the thing which he has taken from his enemy, 
 and recover the price of the sale? By the 12th article of the 
 treaty of peace between the United Provinces and England, 
 of the 4th of September 1662, it was provided, that in such a 
 case, if the consideration of the sale had not been paid to the 
 captor, the property should return to its former owner, which 
 article, in a particular case, that happened afterwards, the 
 states-general ordered to be carried into execution.* But I 
 would wish to know on what principle this stipulation was 
 founded? And how, if the sale of the prize by the captor is 
 lawful, his enemy can be made to derive an advantage from 
 it? It will be difficult to account satisfactorily for this; for 
 it is an established principle, that we may lawfully assist 
 our friends, although enemies to each other, provided we do 
 not supply them with implements of war, and do not shew 
 more favour to one than to the other. It cannot, therefore, be 
 required, that we should shut our ports against them, or pro- 
 hibit all commercial intercourse between them and our citi- 
 zens. I am of opinion, that this 12th article is to be classed 
 among special treaties, the reason of which is often concealed 
 from usj for in general, we are free to exercise the rights of 
 
 their property which they had recaptured from the Spanish privateers; 
 whereupon, the Dutch, by way of retaliation, issued the edict which our 
 author mentions, by which they ordered that no part of the French properly 
 which their vessels of war should retake from the Spaniards should be re- 
 stored to the French, until they should pursue a different line of conduct 
 with respect to them. 2 Aitz. p. 752. fol. ed. T. 
 
 * Aitz. 1. 44. It is difficult to understand how prohibiting the sale of 
 prizes in a neutral country is tantamount with interdicting all trade with 
 the country of the captors; but this strong language of our author, shews 
 how much he was in favour of the right of the belligerents to sell their 
 prizes in neutral countries; and that this right exists, is not only the opinion 
 of Bynkershoek, but of almost all the writers on the law of nations, and par- 
 ticularly of Vattel in the passage last above cited. The same right, however, 
 should be granted to both parties alike, otherwise, the one to whom it is 
 refused, will have a just right to complain. But neutral governments 
 generally find it inconvenient to permit the privateers of contending nations 
 to frequent their ports with their prizes at the same time, and therefore 
 the right is either only granted to one of the parties, by virtue of a special 
 treaty, or denied to both. T.'
 
 TREATISE ON THE LAW OF WAR. 121 
 
 ownership over our property in a neutral country, whether 
 we have acquired it by the law of nations, or by the municipal 
 law. 
 
 Although it be lawful, on rational principles, to carry a 
 prize into a neutral territory, and there to sell it if the captor 
 thinks proper, laws have, nevertheless, more than once, been 
 made to the contrary. The states-general, on the 9th of August 
 1658, issued an edict, by which they ordered, that no foreign 
 captor who might be compelled by stress of weather, or some 
 other reasonable cause, to bring his prize into the ports of this 
 country, should presume to sell any part of it, or even to break 
 bulk, but that he should inform the bailiff of the place of his 
 arrival, who, having placed a guard on board of the ship, 
 should keep a strict watch over her, until her departure, in- 
 flicting, moreover, a discretionary penalty, and a fine of one 
 thousand florins, on any one that should assist in unlading, 
 or purchase any thing out of her. To which edict, the said 
 states-general, on the 7th of November in the same year, 
 enacted a supplement, by which it was ordered that no prize- 
 ship should be brought into the port itself, but merely into the 
 outer roads, where she might be sheltered from danger, and 
 that nothing should be unladen or sold out of her; and if any 
 one should act to the contrary, the prize should be restored to 
 the former owner, as though it had never been taken, and the 
 captor himself should be detained, and his own vessel seized 
 and confiscated. The remainder of the edict merely confirms 
 that of the ninth of August above mentioned. Whether those 
 edicts were extorted from the states-general, by fear or by 
 any other cause, I do not know; but lest they should hereafter 
 militate against rational principles, we must declare that we 
 rather believe them to have been temporary than perpetual 
 laws.
 
 122 TREATISE ON THE LAW OF WAR. 
 
 CHAPTER XVI. 
 
 Of the Right of Postliminy as applied to cities and states.* 
 
 T T has been very properly said by Grotius,\ that " the right 
 -- of postliminy is applicable to a -whole people, as well as to 
 an individual, and that a political body, which was free before, 
 recovers its freedom when its allies, by force of arms, deliver 
 it from the yoke of the enemy." Hotoman is of the same 
 opinion, but there is some doubt whether this principle has 
 been always and every where observed in the United Nether- 
 lands. In the case of Groningen, there is no doubt that it was 
 attended to, as that city and province was admitted into the 
 confederation, after we had reconquered it from the Spaniards, 
 though it is to this day doubtful, whether they had ever before 
 formally signed the articles of Utrecht, and they had certainly 
 renounced them while under the Spanish dominion. Those 
 articles had, however, been signed by the district of Ommelan- 
 den, which constitutes much the largest part of that province. 
 The inhabitants of the district of Drenthe were, on the 1 1th 
 of April 1580, admitted into the confederation of Utrecht, but 
 their country was afterwards invaded and occupied by the 
 Spaniards. After the enemy had withdrawn and evacuated 
 their territory, it seems clear, that they had recovered all their 
 former rights, by virtue of the law of postliminy. Neverthe- 
 less, although they several times petitioned the states-general, 
 to be readmitted into the union, no order has yet been taken 
 upon any of their petitions; and once, in the year 1650, when, 
 after having received a summons, which, it is said, the presi- 
 
 * We liave taken the liberty to abridge several parts of this chapter, 
 which, in the original contains a variety of details, altogether uninteresting 
 to us, and which do not at all elucidate the author's principles. 
 
 t De J. B. ac P.I 3. c.9.$9.n. 1
 
 TREATISE ON THE LAW OF WAR. 123 
 
 dent of the states-general had signed by mistake, their de- 
 puties attended at a meeting of the states, they were refused 
 admittance. This certainly appears to be an act of injustice, 
 particularly as neither the states-general nor the provincial 
 states* have ever given any reason for their refusal to admit 
 them, in which they persist to this day. It may, perhaps, be 
 alleged, that the Drenthers did not renounce their allegiance 
 to the king of Spain, as the other confederates did on the 26th 
 of July 1581; consequently, that they remained under the 
 dominion of the Spaniards, and are to be treated as a con- 
 quered country. But I would not exclude them on that 
 account, as I am not clear that they forfeited the privileges of 
 the Dutch union, merely because they did not renounce the 
 king of Spain, nor do I find that this has ever been objected 
 to them. Therefore, I see no reason why the Drenthers 
 should not enjoy the benefit of the law of postliminy.\ 
 
 The inhabitants of those parts of Brabant, which were 
 under the dominion of the king of Spain, but were afterwards 
 taken by the United Dutch,\ also petitioned the states-general, 
 in 1648, to be admitted into the confederation of Utrecht; but 
 they were not even permitted to manage their own internal 
 government. Some of the provincial states, however, gave 
 power to their delegates to decide upon that business, but 
 nothing was done in it. The Brabanters again petitioned on 
 the 22d of March 1651, but to no purpose. Their case does 
 not appear to come properly within the principle of the law of 
 postliminy, for none of their cities, except Breda, had ever 
 been admitted into the confederation of Utrecht. But as to 
 the inhabitants of Breda, I entertain the same opinion which 
 I have already expressed with regard to those of the district 
 of Drenthe. 
 
 * Of Over-Yssely within which the territory of Drenthe was included. 71 
 f They were not, however, admitted to that benefit, and they were 
 still a dependent territory at the time of the invasion of Holland by the 
 French. T. 
 
 | The districts of Maesland, Kuyck, and Kempenland, with the cities of 
 Boisleduc, Breda, Bergen-op-Zoom and their territories, which constituted 
 what was formerly called Hutch Brabant, T.
 
 124 TREATISE ON THE LAW OF WAR. 
 
 The case of Gitelderland, Utrecht, and Over-Yssel, three out 
 of the seven united provinces, comes much more properly 
 within the law of postliminy. In the year 1672, they were 
 taken by the French,* and afterwards recovered by us. While 
 they were in the power of the enemy, they certainly were not 
 entitled to their former rights as confederates, and on that ac- 
 count their delegates were very properly ordered not to attend 
 any longer at the meetings of the states-general; but when 
 those provinces again came into our possession, they were 
 with equal propriety, considered as being restored to their 
 former rights, by virtue of the law of postliminy. Indeed, the 
 states-general decreed, on the 20th of April 1674, that those 
 provinces should be restored to their former municipal and 
 confederate rights, as they enjoyed them before their capture, 
 except, howevei*, that they deprived Guelderland of one vote in 
 the assembly of the states, and several other conditions were, 
 in fact, imposed upon them before they were readmittted into 
 the union; for, they were informed, that they should swear 
 anew to the articles of confederation, as if they were admitted 
 for the first time. But if, by the operation of the law of post- 
 liminy, every thing is to be restored as if the captivity had not 
 taken place, as it is ever}' where understood, and is con- 
 formable to the usage of nations, every thing ought to have 
 been restored to those provinces, Which they possessed before 
 their capture. They were, in my opinion, fully entitled to the 
 benefit of the law of postliminy, and if so, why was a part oi 
 their rights retained? If, on the contrary, they were not, why 
 was any thing granted to them? 
 
 It has been objected, I know, that the decrees of the states- 
 general, on the subject of postliminy, speak of our subjects 
 only, and that no mention is made in them of our allies and 
 confederates; but that was not the question at the time when 
 those decrees were made. Nay, even if the point were to be 
 decided by those decrees, those should certainly be considered 
 as subjects of this state or republic, who constitute so large a 
 part of it. Others are more properly of opinion, that on the 
 subject of postliminy, there ought to be no difference between
 
 TREATISE ON THE LAW OF WAR. 125 
 
 ourselves and our allies and confederates. Hence the decree 
 of the states -general, of the 23d of October 1676, which I have 
 mentioned above,* grants the benefit of that law, not only to 
 those things which have been taken on board of our vessels, 
 and afterwards recaptured, but also to those which are taken 
 by the enemy, on board of the vessels of allies and of neutrals, 
 and afterwards recaptured by us. I have also herein before 
 shewn, that such was formerly the doctrine adopted by the 
 states-general, and that they blamed the French for having 
 followed a different principle.! 
 
 While the kingdom of Portugal was in the possession of 
 the Spaniards, with whom we were at war, the states-general 
 ' onquered a considerable part of the colony of Brazil, and 
 several others of the Portuguese dominions in different parts 
 of the world. After Portugal had recovered her independence, 
 a truce of ten years was signed between that country and the 
 states-general, in 16404 But our government would not per- 
 mit that the Portuguese should claim by virtue of the law of 
 postliminy, any part of the dominions which once had be- 
 longed to them, and which we had taken from the Spaniards. 
 In 1657, the truce being expired, but before any notice given 
 of the renewal of hostilities, the Portuguese retook some of 
 those places, and on the states-general complaining of it, they 
 refused to restore them, but offered to pay a sum of money by 
 way of compensation, which our government not being dis- 
 posed to accept, they declared war against Portugal, on the 
 22d of October 1657. At last this controversy was settled by 
 the treaty of peace which was made on the 6th of August 
 1661. 
 
 The Portuguese were undoubtedly in the right, to claim the 
 dominions which the states -general had taken from them, be- 
 
 * c. 5. f Above, p. 119. 
 
 \ Shortly after the restoration of the house of Braganza to the throne of 
 Portugal, the states -general made a treaty of alliance with that kingdom 
 against Spain, notwithstanding which the two allies remained at war with 
 each other, and although they united their forces against the common 
 enemy, their mutual hostilities were only suspended by a truce often years, 
 which was not very religiously observed. Cerisier, Hist. Gen. d'.'s Prov. Un. 
 vol. vi. p. 143. Raynal, Hirt. Phiios. & Polit. 1. 9.
 
 126 TREATISE ON THE LAW OF WAR. 
 
 cause the states themselves asserted, that the kingdom of 
 Portugal did not belong to Spain. In addition to this, the 
 Portuguese had been in alliance with the states-general in the 
 war against Spain, so that the places belonging to them which 
 had come into the possession of the Dutch, their allies, were 
 clearly to return to their former sovereign, by virtue of the 
 law of postliminy. It is true, that at the very time when those 
 places came into the power of the Dutch, there was no king 
 of Portugal, but when afterwards, that country was restored 
 to its independency, the Portuguese were entitled to resume 
 the possession of the territories that had been conquered by 
 their allies from the enemies, saving the claim of the states- 
 general for the expenses which they had incurred in taking 
 them.
 
 TREATISE ON THE LAW OF WAR. 127 
 
 CHAPTER XVII. 
 
 Of Pirates. 
 
 f T is a principle consonant to reason and sanctioned by the 
 *- rules of positive law, that things taken by pirates or rob- ' 
 bers, do not thereby undergo a change of property, nor require 
 the operation of the law of postliminy to return to their former 
 owners. The authority of the Digest is in point,* and I have 
 shewn in a former chapter,! that this rule has been adopted 
 by several nations in their treaties with each other. I need 
 not, therefore, bring forward the additional authorities of 
 Grotius^ Gentilis, and Zouch^ and of a number of other 
 writers. But I shall proceed to examine who are the persons 
 to whom we may properly apply the denomination of pirates 
 and robbers. 
 
 We call pirates and plunderers^ (prcedones} those, who, 
 without the authorization of any sovereign, commit depre- 
 dations by sea or land.H Hence, by the law of this country, they 
 
 * ff. De Capt. & Postlim. Revers. I. 19. $ 2. Ibid. 1. 24. 27- 
 
 f C. 15. 
 
 t De J. B. ac P 1. 3. c. 9. . 16. 
 
 De Jure Belli, 1. 1. c. 4. 
 
 || De Jure Fee. P. 2. 8. Q: 15. 
 
 U Our author's definition seems to be intended to apply equally to pirates 
 and land-robbers; whereas it might have been expected that he would have 
 given one to be applied exclusively to the former description of men. We 
 have not been able to find one in the books altogether satisfactory, that given 
 by Mr. Hawkins seems deficient, inasmuch as it might possibly be applied 
 to those who sail tuitli, as well as to those who sail without a commission from 
 a sovereign. He defines a pirate, " one who to enrich himself, either by 
 surprise or open force, sets upon merchants or others, trading by sea, to 
 spoil them of their goods and treasure." 1 Hawk. P. C. 267. Independent 
 of the objection which we have made, there appears to be in this definition 
 a great deal of unnecessary redundancy. 
 
 Were
 
 128 TREATISE ON THE LAW OF WAR. 
 
 are punished as pirates, who sail out for the purpose of making 
 depredations on the enemy, without a commission from the 
 admiral, and without having complied with the requisites of 
 
 Were we to presume to offer a definition of our own, we would say, that 
 a pirate is "he, who sailing without being authorized by any sovereign to 
 make captures, (or with commissions from different sovereigns at war with 
 each other), commits depredations at sea or on shore." We say, " or on 
 shore," because it appears to us, that on the principle of the celebrated 
 case of Lindo v. Rodney, Doug. 591 . (which, we think, may be extended 
 thus far without straining its analogy), if the crew of an unlicensed cruiser 
 should land on a defenceless coast, there commit depredations and carry off 
 the booty on board of their ship, the act would be piracy; and to be tried in 
 a court having admiralty jurisdiction. This doctrine (if correct) may find 
 its application in case such pirates should be brought or found in a country 
 different from that in which the depredations were committed. There, 
 unless they could be tried as pirates, they could not be tried at all. 
 
 We mean to speak here of piracy by the lav: of nations only, not of tint', 
 offence as it is considered at the common law. The definition above quoted 
 from Hawkins, was clearly meant by him to apply merely to piracy by the law 
 of nations, for, in the very next page he gives us the common law definition ot' 
 the same crime, which is very different from the former one. " A pirate," 
 says he, "at the common law, is a person who commits any of those acts of 
 
 f robbery and depredation on the high seas, which, if committed at land, 
 would have amounted to felony." 1 Haivk P. C. 268. On the same prin- 
 ciple, the law of the United States defines piracy in general, the commission 
 at sea, or in a river, haven, bason or bay, out of the jurisdiction of any par- 
 ticular state, of murder, robbery, or any other offence, which, if committed 
 within the body of a county, would, by the law of the United States, be punish 
 
 } able with death. Act of the 30th of April 1790. 8. 1 LO-KS U. S. 102. 
 Several other offences are made piracy by the same statute, which come 
 within the proper scope of municipal legislation. 
 
 Here, then, appear to be two different and distinct species of offences; 
 one against the general lavs of nations, and the other against the municipal 
 law of the land. The laws which constitute the latter kind of crime, are in 
 some respects more extensive, and in others more restricted than that which 
 defines the former. They are more extensive, in as much as they make 
 piracy of an act of felony committed by an individual at sea, even on board 
 of a commissioned vessel of his own nation, and more restricted, because 
 they require, in order to constitute a piratical act, the commission at sea 
 of a common or statute lav> felony, whereas the law of nations in its definitions 
 of crimes, does not take notice of the technical rules of the common or any 
 other municipal law. 
 
 An important question here occurs: " Whether an act of piracy, clearly 
 considered as such by the law of nations, may be inquired of, and punished 
 by the courts of England or the United States possessing admiralty juris- 
 diction in criminal cases, although it should not be piracy at the common
 
 TREATISE ON THE LAW OF WAR. 129 
 
 the law, on the subject of privateering. If an inhabitant of the 
 United Netherlands should sail out under a commission from 
 any foreign prince, or, without the consent of the states-general, 
 should take a foreign commission in addition to one from our 
 own government, he is to be punished by the forfeiture of life 
 and goods, and of the security given on receiving his commis- 
 sion here.* By another lawf it is decreed, that those who 
 shall act thus are to be considered as pirates^ which is very 
 reasonable, because they might thus commit depredations on 
 the subjects of nations in amity with us, and involve their own 
 sovereign into a \var. Probably this last law was made on 
 
 lava, nor be expressly provided for by statute? The learned Wooddeson 
 is in favour of the affirmative. " Whether," says he, " a charge amounts 
 to piracy or not, must still depend on the LAW OF NATIONS, except 
 where, in the case of British subjects, express acts of parliament have 
 declared, that the crimes therein specified shall be adjudged piracy, or 
 shall be liable to the same mode of trial and degree of punishment." 
 1 Wooddes. 140. T. 
 
 * Edicts of the 27th of July 1627, and 26th of April 1653. 
 
 f Edict of the 29th of January 1658. 
 
 \ By the law of the United States, " any citizen accepting or exercising 
 within the American territory, a commission from a foreign prince, shall be 
 fined not exceeding two thousand dollars, and imprisoned not exceeding 
 three years; and any person who, in the United States, shall fit or attempt to 
 fit out or be concerned in a privateer, with intent to commit hostilities 
 against a foreign state, with whom the United States are at peace, or shall 
 deliver a (foreign) commission for any ship or vessel to be employed as 
 aforesaid, shall be fined not exceeding five thousand dollars, imprisoned not 
 exceeding three years, and the vessel with all her materials shall be for- 
 feited." Act of the 5th of June 17943 Laws U. S. 89. And by a subsequent 
 act, " if any citizen of the United States shall, without the limits of the same, 
 fit out or procure to be fitted out, or knowingly be concerned in the fitting 
 out of a privateer for the purpose of cruising against the subjects of a 
 nation in amity with us, or shall take the command, or serve on board of 
 such privateer, or purchase any interest in her, he shall be adjudged guilty 
 of a high misdemeanor, and be punished by a fine not exceeding ten 
 thousand dollars, and imprisonment not exceeding ten years." Act of the 
 4th of June 1797. 4 Laws U. S. 3. T. 
 
 Sir Leoline Jenkins considers those who commit depredations under- 
 several commissions from different sovereigns, as pirates in the highest 
 degree. " The law," says he, " distinguishes between a pirate who is a 
 highwayman, and sets up for robbing, either having no commission at all, 
 or else hath two or three, and a lawful man of war that exceeds his commis
 
 130 TREATISE ON THE LAW OF WAR. 
 
 account of those who, in the month of November 1657, com- 
 mitted depredations under double commissions from France 
 and Portugal,* of whom I have read in the newspapers of that 
 time. 
 
 But what shall we say of those who make use of double 
 passports or sea-letters, as is frequently done by masters of 
 vessels, in order to carry on a contraband trade, or to commit 
 other frauds with greater safety? They, indeed, are not 
 equally guilty with pirates; yet, the states-general, by their 
 edicts of the 31st of December 1657, have ordered the con- 
 fiscation of their ships and goods. Certain sophistical lawyers! 
 have pretended to argue, that such an act does no injury to us, 
 if it is not done in fraud of our own laws; but this is a weak 
 and silly argument, for it is important to the world at large, 
 
 sion. 2 L. Jenk. 714. There may be a difference, however, if the commis- 
 sions are from sovereigns in alliance with each other; but although in such 
 a case it might not amount to the crime of piracy, still it would be irregular 
 and illegal, because the two belligerents might have adopted different 
 rules of conduct with respect to neutrals, or may be separately bound 
 by engagements unknown to the party. Regularly, no one ought to accept 
 of a commission from a foreign prince, without the permission of his own 
 sovereign. 
 
 On this subject, we know, that there have been various opinions. The che- 
 valier de Abreu, (a Spaniard), in his Treatise on Captures, first published at 
 Cadiz, in 1756, and lately at Paris, in a French translation, in 1802 thinks, that 
 there can be no inconvenience in taking several commissions from different 
 sovereigns allied in the same war, because they all tend to the same end, 
 the destruction of the common enemy. Abreu, part 2. c. 1. 7. but we cannot 
 agree with him on this point, because we think, that it does not belong to 
 an individual to judge of the relations that may exist between different 
 sovereigns, and on his single responsibility to run the risk of involving his 
 own country into a war. Louis XIV. in his Ordonnance de la Marine (fi 1681, 
 expressly forbids his subjects and all persons residing in France, to take 
 commissions from other sovereigns, without distinguishing whether his 
 allies or not, under the penalty of being punished as pirates. Ord. tit. des 
 Prises, art. 3. Valin, for various excellent reasons, thinks, that independent of 
 positive law, the taking of^pevcral commissions even from allied sovereigns, 
 cannot be justified, and strongly combats the opinion of the chevalier de 
 Abreu. 2 Vol. Comment. 236. T. 
 
 * France and the United Netherlands were at that time in alliance together 
 against Spain, and the United Netherlands were engaged in a separate war 
 against Portugal. T. 
 
 + Consil Belg. vol. 4. Cons. 20".
 
 TREATISE ON THE LAW OF WAR. 13 1 
 
 that good faith should be preserved between sovereigns and 
 their subjects, and that the latter should not be permitted to 
 injure the former, by their fraudulent conduct.* 
 
 There are also others, who, although they are not properly 
 called pirates, yet on account of the atrocity of their crimes, 
 are punished as such. It is so with those hostile ships who come 
 too near our shores, in violation of the prohibition of the sove- 
 reign. On the 24th of February 1696, the states-general issued 
 an edict, by which it was enacted, " that all French privateers 
 which should come close to the land, zvithin the buoys, a fleet 
 not being at hand to protect them, should be capitally punished, 
 and this law was actually carried into execution, at Gfoningvn, 
 on the 14th of March of the same year. By what right such 
 things are done, I have discussed in a former chapter.f Those 
 also by our laws are punished as pirates, who commit frauds 
 in matters of insurance,:}: and likewise those who cut the nets 
 which are spread out for the herring fishery.^ 
 
 Albericus Gentilis,\\ and several other writers are of opinion, 
 that those nations of Africa, whom we call Barbarians, are to 
 be considered as pirates, and that captures made by them, 
 work no change of property; but that opinion cannot be de- 
 fended on any rational principle. The Algerines, Tripolitans, 
 Tunisians, and those of Sake, are not pirates, but regularly 
 organized societies, who have a fixed territory and an estab- 
 
 * In England and in the United States, the rule is, that the courts take no 
 notice of the revenue laws of other countries; and therefore, insurances 
 made on goods or voyages prohibited abroad are supported when not con- 
 trary to the stipulations of the parties. Pianche \. Fletcher, Dougl. 2,38. 
 This principle, however, lias been much contested by writers on both sides 
 of the question; of which controversy see an account in Part on Insur. 
 341. 6th edit. T. 
 
 f Above, c. 3. p. 19. 
 
 \ Edict of Philip the 2d on Insurance, of the 26th of January 1550. 22. 
 We have not been able to ascertain the precise extent of this law. It is not 
 mentioned in the Curia Philipica, nor inserted with the other maritime 
 ordinances of the same sovereign, in Les Us & Ccutumes de la Jlfer, nor in 
 Adriaan Vertxer's collection of Spanish and Dutch maritime laws, entitled 
 " Over de Zee-Sechten." T. 
 
 Edict of Philip the 2d. of the 9th of -March 1580. 23. 
 
 !! De Advoc. Hispan. 1. 1. c. 15-
 
 A 4* 
 
 132 TREATISE ON THE LAW OF WAR. 
 
 lished government, with whom we are now at peace and 
 now at war, as with other nations, and" who, therefore, are 
 entitled to the same rights as other independent states. The 
 sovereigns of Europe often enter into treaties with them, and 
 the states-general have done it in several instances.* Cicero 
 defines a regular enemy " one who hath a commonwealth, a 
 court of justice, a treasury, the consent and agreement of the 
 citizens, and who pays some regard to treaties of peace and 
 alliance.f All these things are to be found among the Bar- 
 barians of Africa, for they pay the same regard to treaties of 
 peace and alliance that other nations do, who generally attend 
 more to their convenience than to their engagements. And if 
 they should not observe the faith of treaties with the most 
 scrupulous respect, it cannot be well required of them; for, 
 it would be required in vain of other sovereigns. Nay, if they 
 should even act with more injustice than other nations do, 
 they should not on that account, as Huberus\ very properly 
 observes, lose the rights and privileges of sovereign states. 
 
 Indeed, as the Algerines constitute a republic, ambassadors 
 are sent to them by other princes, and those who are made 
 prisoners by them, change their condition and become slaves. 
 Perhaps the Spaniards do not reckon those Barbarians among 
 the number of regular enemies; but, although it may be 
 correct, as to them, the principle will not bear to be extended 
 beyond Spain. The Dutch, it is true, are in the habit of car- 
 rying their Algerine prisoners into Spain, and there by the 
 lex talionis, to sell them into slavery, but this is conformable 
 to the law of war, which may be carried into execution against 
 
 * Particularly on the 30th of April 1679, and 1st of May 1680, and often 
 afterwards. 
 
 f >ui haberet Bempublicam, curiam, <erariitm, comensuin, & concordiani 
 civium, rationein alifjuain, si res itd tulisset, pads Cr foederis. Cic. Philip. 
 4. C. 14. 
 
 \ De Jure Civitat. 1. 3. c. 5. $ 4. n. ult. 
 
 Hence, those who are taken by the Algerines are not only privately, but 
 sometimes publicly, redeemed. The states-general, on the 25th of Sep- 
 tember 1681, ordained, that the bailiffs of towns should report to the magis- 
 trates those of their inhabitants who should be taken by the Algerines, and 
 that the magistrates should report to the counsellors of the states of Holland, 
 'hat they might take measures to effect the redemption of the captives.
 
 TREATISE ON THE LAW OF WAR. 133 
 
 an enemy, if one thinks proper, under such circumstances as 
 I have above discussed in the third chapter. 
 
 There has been a case, however, in which those Africans 
 have been considered to a certain degree as pirates, so far, at 
 least, that their capture was not thought to have worked any 
 change of property. On the 15th of July 1664, the admiralty 
 of Amsterdam restored, -without salvage, a vessel which the 
 Algerines had taken from the English, and which the Dutch 
 admiral had recaptured from the Algerines, and the said vessel 
 was so restored, as Aitzema relates,* at the request of the 
 English ambassador, in hopes that the English would do 
 the same by us in similar cases. But lest this case should be 
 drawn into a precedent, it ought to be known, that the Al- 
 gerines had taken that vessel in the midst of a peace which 
 had been lately concluded by them with the English and 
 Dutch, and for that reason alone it had been considered that 
 their capture under such circumstances, had worked no change 
 of property. Such, according to Aitzema, was the reason given 
 by the English ambassador; whether it was sufficient or not, I 
 shall not now consider, being satisfied with observing, that 
 this ought to be, and in fact it was considered by both parties 
 at the time, as a singular case. 
 
 What is the proper forum or jurisdiction for the trial of 
 pirates may be and has often been questioned?! ^ suc ^ a 
 one, although a foreigner, should commit depredations upon 
 our citizens, : and be taken, I have no doubt but that he may 
 
 * Aitz. 1. 44. 
 
 f I the original, there is in this place, a long dissertation on the 
 subject of the respective jurisdictions of the Dutch admiralty courts 
 and their ordinary tribunals, which we have left out, as uninteresting and 
 useless. T. 
 
 \ As the law of nations is at present understood, it is of no importance, 
 for the purpose of giving jurisdiction, on 'whom or where the piratical offence 
 has been committed. A pirate is considered as an enemy of the human race, 
 Chostis humani generis;} and therefore, may be tried, convicted and 
 punished in any country where he may be found. " Every man," says sir 
 Leoline Jenkins, "by the usage of our European nations, is justiciable in the 
 place where the crime is committed; so are pirates; being reputed out of 
 the protection of all laws and privileges, and to be tried in what port s soever 
 they may be taken. 2 L. Jenk. 714. T,
 
 / 
 
 134 TREATISE ON THE LAW OF WAR. 
 
 properly be tried and punished by our own tribunals, not only 
 if he is taken in the fact and brought into our country, but 
 also if he should be found and taken among us on any other 
 occasion. This must be admitted, if he has committed depre- 
 dations upon us without any commission from his sovereign, 
 but if he had a commission, and it is only alleged that he 
 exceeded it, then the question becomes more susceptible of 
 doubt. 
 
 In the year 1667, this subject was agitated between the 
 English* and the states-general, concerning those who had 
 obtained letters of reprisal while there were differences sub- 
 
 * The English, however, a few years afterwards, unjustly, in our opinion, 
 claimed and exercised the right of trying and punishing a regularly com- 
 missioned privateer for having exceeded the bounds of his commission. 
 The case is related by sir Leoline Jenkins, whose advice was taken and 
 followed on the occasion. In the year 1675, one Cheline, the commander of 
 a French privateer, having committed several unwarrantable depredations 
 at sea, and among other things, plundered several English vessels of their 
 provisions, (England being at that time in amity with France), went with his 
 ship into the port of Kinsale, in Ireland, where his crew having informed 
 against him, sir Leoline Jenkins was consulted by the king on his case, and 
 gave it as his opinion, that he was liable to be punished with death as a 
 pirate, and that his goods and vessel should be confiscated. Cheline, 
 however, having had wind of the intended prosecution, escaped from 
 Ireland, but his vessel and goods were seized, proceeded against in the 
 court of admiralty and confiscated. In vain the king of France, whose com- 
 mission he bore, demanded that the cause should be remitted to him for 
 trial; sir Leoline answered, that this matter of r envoy (remitting of causes 
 to foreign sovereigns for trial) was quite disused among princes; and as to 
 Cheline's commission, he said, that it had only been given to him to cruise 
 against the enemies of the most Christian ting, and did not give him the 
 right of pillaging the king's friends. 2 L. Jenk 714. 754 Mr. Wooddeson 
 is mistaken, when he says, that Cheline was held not to be punishable for 
 piracy, because he had a commission from the king of f ranee. 2 Wooddes. 425. 
 He was actually punished as a pirate as far as the confiscation of his ship 
 and goods, and if his person had been laid hold of, would have been hanged 
 as such, for plundering the English vessels at sea. It is true, that among 
 the charges exhibited against him, there was one for attacking and taking 
 a Dutch ship, near the port of Dublin, and that on this particular charge, 
 sir Z. Jenkins gave it as his ophiion, that he could not be capitally 
 convicted; but it was not on the ground of his being bearer of a French 
 commission, but because the statute had provided a different punishment 
 3 /.. Jenk. 754. T
 
 
 TREATISE ON THE LAW OF WAR. 135 
 
 sisting between the two nations, and who committed depre- 
 dations even after the peace. The English contended, that 
 they were to be tried by the courts of the sovereign who had 
 granted the letters of reprisal. The ambassadors of the states- 
 general insisted, that those who committed hostilities without 
 a lawful authority from their sovereign, were to be considered 
 as pirates, that such was the general law of nations, and that 
 offenders of that description might be punished by any sove- 
 reign into whose dominions they might be brought, of which 
 there was a great number of examples. The French ambas- 
 sadors at that time were of the same opinion in which the 
 English and the states-general then concurred.* 
 
 But whether one be a pirate or not, depends upon the fact, 
 whether he has or not, a commission to cruise; and if it should 
 be alleged that he exceeded the authority which that commis- 
 sion gave him, I would not, on that account, hold him to be a 
 pirate. Generally, the sovereigns who grant the commissions, 
 decide on the captures that are made by virtue thereof, because 
 the prizes are brought within their dominions;! but I would 
 have no objection to such decision being made by the sovereign 
 whose subjects complain of depredation, if the perpetrators 
 should be brought or apprehended within his territory.^ By 
 
 * Aitz. 1. 47. 
 
 | Professor Rutherforth, in his Institutes of Natural Law, gives a different 
 reason for allowing to the sovereign of the captors, the exclusive right of 
 adjudicating prizes made under his authority. " It is not," says he, 
 '* because the prize has been brought into the territory of that sovereign, 
 that he is entitled to an exclusive jurisdiction in such cases; for, the 
 controversy arose upon the main ocean, which is out of his territory, and 
 as he had no jurisdiction in the first instance, the subsequent act of bringing 
 the prize into his territory will not give him any. But the reason is, thai: 
 the state to which the captors belong has a right to inspect into their be- 
 haviour; both because they are members of it, and because it is answerable 
 to all other states for what they do in war." 2 Buth. 595, 596. Cambridge 
 edit. T. 
 
 \ Several plausible schemes have been proposed for establishing a more 
 impartial jurisdiction for the trial of neutral property taken in war, but 
 none of them has yet obtained the general assent of mankind, or has even 
 been adopted by a single nation. Hubner is for a mixed tribunal, to consist 
 of commissioners respectively appointed by the sovereigns of the captors 
 and the captured, with the addition, when the prize is carried into a neutral 
 port, of one or more judges appointed by the sovereign of the neutral tf*~
 
 136 TREATISE ON THE LAW OF WAR. 
 
 the 22d article of the treaty of peace between the king of 
 France and the states-general, of the 27th of April 1662, it is 
 stipulated, " that vessels which shall be taken by ships of war 
 or commissioned privateers, shall be tried in the dominions 
 of the sovereign by whom the commission shall have been 
 granted, and not elsewhere." 
 
 It is more difficult to decide, whether a foreigner who has 
 committed depredations on other foreigners, may, if he should 
 be found among us, be tried by our tribunals? In the year 
 1661, doubts were entertained upon this subject, in the case 
 of a Portuguese privateer who had committed depredations on 
 the subjects of a nation in amity with us and not at war with 
 Portugal, but the spoliator having died in the meanwhile, 
 nothing was decided upon it.* In the year 1668, the king of 
 England, on the representation of the ambassadors of the 
 states-general, ordered an Ostend ship, cruising under a com- 
 
 ritory. 2 Hubn. 44. Gallant is for vesting that jurisdiction, in some cases, 
 in the tribunals of the captor, and in others in those of the captured. 
 De' doveri, l>c. 1. 1. c. 9. 8., but the ancient practice has continued and still 
 continues to be followed. 
 
 It is true, however, that when prizes are brought into a neutral port, the 
 neutral sovereign will restore the property of its subjects or citizens, if it 
 has been illegally captured. That this doctrine is not new, appears clearly 
 from the 15th article of the marine ordinance of Louis the XIV. title des 
 Prises, which contains this express clause: " If on board of the prizes which 
 shall be brought into our ports by foreign armed vessels, there shall be 
 found goods belonging to our subjects or allies, those of our subjects shall 
 be restored to them," and this right, says Valin, " is exercised by way of 
 compensation for the asylum, granted to the captor and his prize." 2 Valin\i 
 Comment. 274. 
 
 The same right has been exercised by the courts of the United States, in 
 various instances, during the last war between Great-Britain and France. 
 Glass & Gibbs V. The Betsy. 2 Dallas's Reports 6.Hollingsworth v. The 
 Betsy. 2 Peter g's Admiralty Reports, 330. 
 
 In like manner, prizes taken by foreign privateers fitted out in the 
 United States, in violation of our neutrality, and brought into our ports, 
 have been invariably restored. Talbot v. yansen. 2 Dallas, 1.33. and by an 
 act of congress of the 5th of June 1794, the district courts are authorized 
 " to take cognizance of complaints, by whomsoever instituted, in case of 
 captures made within the waters of the United States, or within a marine 
 league of the coasts or shores thereof." 3 Laws U. S. 91. T. 
 
 * Aitz. 1. 41.
 
 TREATISE ON THE LAW OF WAR. 137 
 
 mission from the king of Spain, which had taken a Dutch 
 vessel, to be detained, and the laws to be executed upon the 
 captain * 
 
 It is clear, that if the law of the neutral country (like the 
 two edicts which I have mentioned above)f forbid the selling 
 of prizes on the neutral territory, unless they have been car- 
 ried into the port where the privateer was fitted out, and there 
 legally condemned, it will appear unjust to give an action 
 against the captor, either to the government for the punish- 
 ment of the offence, or to the owners of the captured property 
 for the damage suffered. The condition of both foreigners 
 ought to be alike; if the spoliated party is permitted to bring 
 his action against the captor, the latter ought to be allowed 
 to justify himself, by shewing that his prize was legally cap- 
 tured. And yet, it would be hard and unexampled, to deny to 
 the owner of the captured ship and goods, the right of claim* 
 ing satisfaction from a foreigner whom he finds here, and who 
 may be immediately going nobody knows whither. For this 
 reason, I am not satisfied with the two edicts above mentioned, 
 
 * The fact, as related by Aitzema, (I. 48.) is as follows: The Dutch am- 
 bassadors complained to his majesty of the intolerable insolence of the 
 Ostend privateers, and expressed their opinion of the manner in which it 
 should be proceeded against them; they spoke in particular of the ship 
 Jupiter of Amsterdam, which those corsairs had shot at for a long time, 
 (making them believe that they were Turks}, and had frightened them so 
 much, that the crew of the Jupiter had forsaken her, and made their 
 escape to the shore, and the privateer had run in with the ship into the Isle 
 of Wight. 
 
 The king was pleased to answer, that he had heard great complaints on 
 all sides of the conduct of the Ostend privateers; that they were, in fact, 
 mere pirates, but that he would put a stop to it; that if any of his sub- 
 jects should be found on board of such privateers, they should be hanged, 
 and that he would make strong representations to the court of Brussels, that 
 they should inflict the severest penalties upon such robbers; that with 
 regard to the ship Jupiter, the ambassadors should present a memorial to 
 the council of state, who would take order upon the subject. " The me- 
 morial," continues Aitzema, " was accordingly presented, on which his 
 majesty was pleased to resolve, that the captain of the privateer and his ship 
 should be arrested, and proceeded against according to law." 6 Aits. 395. 
 fol. edit. What was afterwards done with them, does not appear. T. 
 
 + C. 15. p. 121. 
 
 f S
 
 138 TREATISE ON THE LAW OF WAR. 
 
 The common punishment of pirates is the forfeiture of their 
 lives and goods, which is sufficiently pointed out by all the 
 edicts which I have above related, made on the subject of 
 those, who, from the atrocity of their crimes, are to be con- 
 sidered as such. But there is a special edict of the states- 
 general, of the 25th of August 1611, against pirates^ properly 
 so called, their aiders and abettors, by which they are punished 
 with the forfeiture of life and goods, one third of the goods 
 being given to the informer. The penalty, therefore, is capital, 
 and it is not in the power of the judges to mitigate the punish- 
 ment: They do, however, execute the law with more or less 
 rigour, on account of the frequency of piracies and other 
 offences of the like nature. And, indeed, provided death is 
 inflicted, the remainder may be left to the discretion of the 
 judge, as is the case with almost all other crimes, for which 
 the law in general terms directs a capital punishment.* 
 
 * If we have not mistaken the meaning of this passage, it seems that the 
 mode of inflicting the punishment of death, when the law had not expressly 
 provided it, was formerly left, in Holland, to the discretion of the judges. 
 We wish that we may have misunderstood it. T.
 
 TREATISE ON THE LAW OF WAR. 139 
 
 CHAPTER XVIII. 
 
 Of Privateers. 
 
 'T^HIS subject also properly belongs to the law of nations, 
 -* not only because privateering cannot be lawfully carried 
 on without an authorization from the government, but be- 
 cause the controversies which arise out of it, often create dis- 
 turbance within the state, and set sovereigns at variance with 
 each other. 
 
 It was formerly held at Rome, that one who was not regularly 
 enrolled as a soldier, could not lawfully kill an enemy of the 
 Roman people. Such was the opinion of Cato, as we are in- 
 formed by Cicero* and Plutarch.] But it appears from the 
 Digest^ that the law of Solon, by which individuals were per- 
 mitted to form associations for the purpose of plunder, was 
 afterwards introduced into the Roman system of laws, and 
 made a part of their code.|| 
 
 * De Offic. c. 11. The reference in the original is by mistake to c. 
 36, 37. T. 
 
 f Qusest. Rom. 39. 
 
 4 ff. de Colleg. & Corpor. 1. 4. 
 
 Among the ancient Greeks and Romans, down to the time of Tarquin, it 
 was considered as glorious, to plunder foreigners at sea, with whom there 
 were no treaties of peace or alliance, even though there was no public 
 or open war against them. Grot. De Jure B. ac P. \. 2. c. 15. 5. Justin.!. 
 43. c. 3. It seems, that the manners of those nations at that time were very 
 similar in this respect to those of the barbarians of Africa at the present 
 day, who plunder indiscriminately all those with whom they have not, by 
 an express treaty, agreed to remain at peace. T. 
 
 || But in the Latin translation which is subjoined in the Digest to the 
 Greek text of Solon, the words of the original Ini A/V o\x?l*-h ("those who go 
 out for plunder} are not translated, and the compilers have inserted in lieu 
 thereof, sodales qui multum siinul habitantes stint, (associates who live a great 
 deal together.} This difference has very much exercised the ingenuity of 
 the doctors of the civil law, to whose works we shall refer those of our
 
 140 TREATISE ON THE LAW OF WAR. 
 
 It is now, indeed, a long time since sovereigns have begun 
 to make use of the aid of individuals against their enemies, as 
 auxiliary to the public force. Formerly, in the United Nether- 
 lands, there were no vessels of war but such as were owned by 
 private persons, to whom, besides bounties out of the captured 
 and recaptured property, the state paid a certain sum, by way 
 of indemnity from the public treasury, proportioned to the 
 expense which they were at, and to the time which they 
 employed in hostile expeditions. A great use was made of 
 those private armed vessels (which were then called cruisers} 
 by the states-general, in their war with Spam. Several edicts 
 were made respecting them, which it is needless to relate. 
 
 At present, as well as formerly, when war takes place, 
 vessels are fitted out, manned and armed by private adven- 
 turers at their own expense, with which they attack the enemy's 
 vessels at sea, with no other inducement than that of the cap- 
 tures which they expect to make. These have been called capers 
 and freebooters, but now by a more decent appellation are de- 
 nominated privateers. It is not possible to ascertain whether 
 they were the same description of men, who, in the Digest, 
 are called latrunculi.* , For my part, I do not believe it, nor 
 do I think that Albericus Gentilis is right in giving them the 
 name of pirates, which he does throughout his work De Ad- 
 ijocatione Hispanicd, whenever he has occasion to speak of 
 them, and even when he treats of the laws and usages by which 
 their conduct is regulated. This is so very absurd, that it does 
 not deserve a serious refutation; for, after all, what those men 
 do, is done under the sanction of public authority. In this 
 country they are not allowed to sail without a commission 
 from the states-general or the admiral, countersigned by the 
 lieutenant of the admiralty of their particular district, nor 
 without having first made oath and given satisfactory security 
 that they will not do any injury to neutrals. These and other 
 regulations are to be found in the Formce Admiralitatum,r and 
 
 readers whose curiosity may lead them to investigate the subject. Our 
 author has written a dissertation upon it, in his Obscrv. Jfur. Jfom- 1. 
 1. c. 16. T. 
 
 * ff. de Capt. 8c Postlim. Revers. 1. G. 
 
 + Instructions or regulations for privateers
 
 TREATISE ON THE LAW OF WAR. 141 
 
 in various edicts, which have been made on the subject of 
 privateers whenever foreign powers have complained of their 
 depredations. But as those edicts are in every body's hands, 
 I think it unnecessary to give here a more particular account 
 of the regulations which they contain. 
 
 I think it more worth while to inquire whether the captains 
 of privateer ships, who are not themselves the owners of the 
 vessels, may enter into a partnership with each other for sharing 
 in the prizes which they may each separately take? If they are 
 sent out merely to cruise and make captures, and have no 
 further authority, it is certain that they cannot form such 
 partnerships without the consent of their owners, otherwise, 
 the agreements which they make with each other are to be 
 considered as null and void. 
 
 Let it not be objected,* that t>y the law of Solon above- 
 mentioned, the partnership contracts of those who go out to 
 plunder are declared valid, for it is sufficiently clear, that the 
 legislator only meant to speak of those who are their own 
 masters, and go out to plunder on their own account. So, if the 
 owners of privateers should enter into partnerships with each 
 other, and agree that their prizes should be equally divided 
 among themselves, such agreements as well as every, other 
 which they might make, would undoubtedly be valid; because 
 every one may dispose of his own property as he thinks fit: 
 but such a power can never be exercised by captains of private 
 armed ships, unless they are also the owners of them, which is 
 hardly ever the case. 
 
 We are speaking here only of those captains of privateers 
 who have received an authority from their owners merely to 
 cruise, and who exceed it by entering into particular agree- 
 ments with each other. There was once a cause of very great 
 moment decided upon this question, and which was even car- 
 ried to the court of revision. Two privateers, one belonging 
 to A and the other to B took a vessel together, and after- 
 
 * It ought to be remembered, that in Holland, at the lime when our 
 author wrote, the imperial law of Rome was the common law of the land. 
 This will sufficiently account for the constant application which he en 
 deavours to make of its rules and principles, T,
 
 142 TREATISE ON THE LAW OF WAR. 
 
 wards (as B alleged) the two captains agreed together, that 
 any future prize that they should make, should be divided 
 between them. Afterwards they separated, and A's vessel 
 alone took another prize, which B insisted should be divided 
 between them, by virtue of their agreement. A denied that 
 the agreement extended to prizes separately made, and if 
 it did, he contended, that it was illegal and void. And so it 
 was determined by the inferior court at Flushing. But B 
 having appealed to the supreme court, the cause was decided 
 in his favour, on the 3d of March 1696, and that judgment 
 was affirmed by the court of review on the 4th of October 
 1697. To the same effect is the opinion of several advocates 
 in Consilia Belgica,* and a similar decision was given by the 
 court of admiralty of Amsterdam, in 1665. 
 
 But all these decisions, except that of the court of Flushing, 
 appear to me to have been erroneous, and I think that the 
 cause ought to have been determined in favour of A. I have 
 read with astonishment in the acts of the supreme court, in 
 which the opinions of several judges of that tribunal and of 
 the court of review are inserted, that in the particular case 
 that I have spoken of, the only question that was agitated was, 
 whether there had actually been an agreement between the 
 two captains, that the prizes which they should separately 
 take should be common between them, or whether it contem- 
 plated merely those which they should take in company; but 
 the question of the legality of the agreement, which was the 
 first that suggested itself to me, does not appear to have been 
 even thought of. 
 
 Admitting that it had been expressly agreed between the 
 two captains, that all the prizes which they or either of them 
 should take, whether jointly or separately, should be equally 
 or proportionably divided between them, still I do not think 
 that A was at all bound by that agreement. He had sent 
 out his vessel at his own risk, for the sole purpose of cruising 
 and making captures; he had given no other instructions 
 to his captain, and had in no manner authorized him to 
 
 * Vol. 4. Consil 204.
 
 TREATISE ON THE LAW OF WAR. 143 
 
 enter into partnership with others, which he might have done 
 himself, if he had thought proper. His captain, therefore, had 
 no authority for what he did, and in that case, his unauthorized 
 act could not bind his owner. I know, that if .B's vessel had 
 alone made a prize, it would not have been difficult to persuade 
 A to receive his proportion of it; but neither would it have 
 been difficult to persuade B to contend for the same principle, 
 which A in the case before us, insisted upon. The first vessel 
 which was taken by the two armed ships together, and by 
 means of their joint force, was a prize common to them both, 
 by an implied partnership arising out of the circumstances of 
 the case; but it was not so with the second, which ./f s vessel 
 took alone, and which he ought to have kept exclusively to 
 himself, if, agreeably to my opinion, he was not bound by 
 the agreement of his captain. Therefore, on legal principles, 
 setting aside the question of fact, I prefer the decision of the 
 court of Flushing to all the others that have been given on the 
 same subject. 
 
 I proceed to a question, which, in my opinion, deserves the 
 most serious consideration; it is, " Whether, if one or more 
 armed ships take a prize, others being present, but not fight- 
 ing, it is to be divided between them?" As far as relates 
 to ships of war, this question is settled by positive law; for, 
 there is a decree of the states-general, of the 28th of January 
 1631, by which it is enacted, " That if a ship of war shall 
 attack an enemy, another ship of war being present, may join 
 in the fight, but not if the one who attacked first, shall call out 
 that he has no need of assistance." But it appears to me, that 
 this law was made specially for vessels of war, otherwise, 
 there is nothing to hinder one armed vessel from joining 
 another, in attacking and capturing a common enemy who is 
 not yet subdued. 
 
 For the same reason I consider as a special ordinance, the 
 sixth section of the Forma or regulation of the 15th of July 
 1633, expressly made for the privateers commissioned to 
 cruise against the Spaniards in America, by which it was 
 ordered, " that a privateer who should take a prize jointly 
 with a vessel of the West-India Company, should not be en-
 
 144 TREATISE ON THE LAW OF WAR. 
 
 titled to a share thereof, unless he had been expressly called 
 to the assistance of the company's ship." The same may be 
 said of the seventh section, which enjoins upon all privateers, 
 on pain of forfeiture of ship and goods, " not to meddle or 
 interfere with the captures which the ships of the company 
 may wish to make." If, however, the aid of a privateer ship 
 should be called for, and she should take a prize, jointly with 
 a vessel of the West- India Company, there is no doubt but that 
 it should be distributed between them, in proportion to their 
 respective size and force, as is provided by the sixth section 
 of the said Forma: and if their force is equal, then the prize 
 is to be equally divided between them; otherwise, it is best to 
 observe what is called a geometrical proportion. 
 
 What shall we say, if one or more ships pursue an enemy's 
 vessel, and one of them perishes? or if more, perhaps, are 
 present, but one alone takes the prize, while the others 
 are merely spectators, and take no part in the action? The 
 decree of the 28th of January 1631, which I have mentioned 
 above, directs, that in such a case, " the prize is to be divided 
 between all the vessels of war which have pursued her, but 
 that she which has actually made the capture is to have the pro- 
 visions, small-arms- and plunderage"* But this again only 
 concerns ships of war, of whose captures the states-general 
 dispose at their discretion; for otherwise, if the case concerned 
 privateers only, I would rather adjudge the whole prize to him 
 who has fought and conquered the enemy's vessel, how many 
 others soever might have pursued her, or been spectators of 
 the contest.t 
 
 * The precise expression used in the original: it probably means every 
 thing susceptible of being made booty of war, which is not a part of the 
 vessel or of her cargo, (properly so called.) 7'. 
 
 f This opinion of our author accords with that of the modern writers 
 who have treated of this particular subject. " Excepting," says professor 
 Martens, " the case of an association among privateers, it is requisite, in 
 order to have a share in the prize, to prove the having contributed in some 
 :nannrr to the taking of it, and it is not sufficient to have been found in 
 :ight Mi, tens on Captures, 32. in Jin. p. 91. ngl, trans I. It appears also 
 *o hf, as far as we know, generally carried into practice among the nations
 
 TREATISE ON THE LAW OF WAR. 145 
 
 There are those, I know, who are for admitting all who 
 were merely present, or even in sight, though at a distance; 
 but this cannot be admitted. It is true, that the mere presence 
 
 of Europe, with respect to privateers, though in the case of vessels of war, 
 governments have been induced, from motives of policy, to adopt a different 
 rule. 
 
 The ordinances of France provide, that with regard to vessels of war, 
 " tlrose shall be considered as joint captors who shall have found them- 
 selves together and in sight of the capture at the time of its being made. 
 Ord.of the 15th of June 1757, art. 10. 1 Code des Prises, (edit. 1784) p. 512. 
 Valin, Traite lies Prises, Append. 199. Thus, the mere circumstance of 
 being in sight at the time of the capture, entitles a ship of <war, by virtue 
 of this ordinance, to a share of the prize. 
 
 But, in the case of privateers, another ordinance prescribes the opposite 
 rule. It enacts, " that none shall be entitled to a share in a prize taken 
 from the enemy, who have not contributed to the taking of the vessel;" 
 which the next article explains, can only be done " by fighting, or by making 
 such an effort as may have compelled the enemy to surrender, by intimi- 
 dating him or cutting off his retreat." Ord.of the 27th January 1706, art. I 
 and 2. 1 Code des Prises, 282. (same edition.) Valin, ubi supra, p. 102. 
 
 In England, the same distinction appears to be adopted. Ships of war are 
 entitled to share in a prize from the mere circumstance of having been in 
 sight at the time of the capture, the ancient general rule having been re- 
 laxed or modified in their favour. " Formerly," says sir William Scott, 
 " joint capture was confined to cases of actual co-operation, and when, in con- 
 sequence of frequent litigations, it was extended to constructive assistance, 
 for the purpose of preserving harmony and good understanding among the 
 navy, the being in sight became the principal criterion. The Vryheid, 2 Rob. 
 14. Am. edit. In a later case, the same judge determined, in a contest 
 between a king's ship and a privateer, that the mere being in sight was 
 sufficient in the former to support the animus capiendi, and entitle her to a 
 share of the prize. The Flore, 5 Sob. 239. Am. edit. 
 
 But, on the contrary, when a similar controversy arose between similar 
 parties, and the privateer claimed a share of the king's ship's prize, because 
 he had been present at the capture, sir William Scott decided, " that the mere 
 being in sight was not sufficient, with respect to privateers, to raise the 
 presumption of co-operation in the capture: they clothe themselves, said he, 
 with commissions of war from views of private advantage only; they are 
 not bound to put their commissions in use on every discovery of an enemy, 
 and therefore, the law does not presume in their favour, from the mere 
 circumstance of being in. sight, that they were there with a design of 
 contributing assistance and engaging in the contest. " VAmitic, 6 Rob. 264 
 Am. edit. 
 
 We have not been able to find a single case in any of Dr. Robinson's 
 Reports, in which the nuked question has been agitated exclusively 
 
 fT
 
 146 TREATISE ON THE LAW OF WAR. 
 
 of others may have been the cause that the enemy has either 
 surrendered sooner or been more easily subdued; but we are 
 not to consider for what reason the vessel was taken or sur- 
 rendered, but who took her. In the same manner, we should 
 not admit the fort,* town or fleet in whose presence a capture 
 was made, to a participation in the prize, even though it might 
 be said to have been induced to surrender, by the fear which 
 their presence excited. On the other hand, it is clear, that if 
 another vessel has joined the captor in fighting the enemy, 
 an accidental partnership must be considered as having taken 
 place between them, and the reason of the thing requires, that 
 what has been taken by their joint efforts, should be divided 
 among them in proportion to their respective strength. Nor 
 are we to discriminate in such a case between the different 
 degrees of exertion; for that would be too difficult in practice; 
 but we only consider whether the vessel which was present 
 at the capture, did actually fight, and by her assistance, con- 
 tribute to the victory. 
 
 Analogous to this principle is the doctrine which the civil 
 law lays down on the subject of animals force naturce, which do 
 not become the property of those who pursue, but of those 
 who actually take them.f 
 
 1C? 3 The remainder of this chaffer is so entirely and exclu- 
 sively local, that we have not thought it worth while to trans- 
 late it. 
 
 between privateers. In one case, indeed, a share in a prize was allowed to 
 one of that description in competition with another, from the circumstance 
 of his being in sight at the time of the capture, coupled with that of having 1 
 sailed in company with the principal captor, and the capture WPS that of ;i 
 defenceless neutral vessel, in which no fighting was required: The William, 
 5* Mary, 4 Rob. 312. Am. edit. But we have not discovered one in which the 
 question turned singly on the circumstance of being in sight, at the time oi 
 the capture; therefore, we presume, that the principles established m 
 ISAinitie 1 , would prevail in such a case. T. 
 
 * In England, land forces are not considered as entitled to share in :i 
 capture, unless they have actually assisted and co-operated in it. Tin- 
 Dordrecht, 2 Rob. 53. Am. edit. T 
 
 f Inst. De Rer. Divis. 13.
 
 TREATISE ON THE LAW OF WAR. 147 
 
 CHAPTER XIX. 
 
 Of the Responsibility of owners of Privateers. 
 
 T> Y the laws of our country, contained in the Format Ad- 
 *-* miralitatum and several edicts of the states-general, pri- 
 vateers are not permitted to sail from our ports, without giving 
 security to answer for their good behaviour, that they will do 
 no injury to neutrals, and that they will bring their prizes to 
 legal adjudication, by the court of admiralty of the place where 
 the security is given.* 
 
 The amount of this security has varied. It was at first re- 
 quired to be in ten thousand florins, the ship and the cargo at 
 the same time remaining answerable for the consequences of 
 the privateer's unlawful conduct. Afterwards it was ordered, 
 that the owner should give security in twelve thousand, and 
 the captain in ten thousand florins, the owner's bond to be re- 
 sorted to in the first instance, and if it should not prove 
 sufficient, then recourse might be had to that given by the 
 captain.f But by the last edict which has been made upon this 
 subject,:): it is merely provided, that security shall be given in 
 the sum of thirty thousand florins,^ and the law does not 
 
 * Form* Admiral, of the 13th of August 1597. 5. 69 of the 15th of 
 July 1634. 5. 
 
 f Edicts of the 1st of April 1622 9th of August 1624, and 22d of October 
 1627. 
 
 \ Forma of 28th of July 1765. 3. 
 
 About g> 12,000. In England, the security given by a privateer is 
 3000 (13,320) which is reduced to one half if the vessel carries less 
 than 150 men. Home's Compendium of Admiralty Lau-s, p. 9. In France^ 
 by a decree of the 2d Prairial, llth year, (22d of May 1803), the amount 
 of such security is fixed at 74,000 francs (about 14,095) reduced in the 
 same manner to one half, if the privateer is navigated by less than 150 men. 
 Diet. Univ. de Commerce,, verbo COURSE. By an act of congress, made 
 flaring the partial hostilities between the United States and France, priva-
 
 148 TREATISE ON THE LAW OF WAR. 
 
 specify, whether by the captain or by the owners. It appears 
 to me, however, that the captain is the person who is to give 
 the security, because it is he who is to bring the prize into 
 the port from whence the vessel has sailed. I might mention 
 here several treaties between the states-general and other 
 powers, by which it has been stipulated, that captains and 
 owners of privateers should give security not to do any thing 
 in violation of existing treaties, but as they do not enter into 
 further details, I think that I may safely pass them over. 
 
 Thus much being premised, I shall proceed to inquire, 
 whether, if a privateer has made an illegal capture, the damage 
 suffered in consequence thereof is to be repaired by the cap- 
 tain, his securities, or the owners of the capturing vessel, 
 and if Jo the latter, then to what extent they are liable? 
 On this question, the Dutch lawyers have answered,* " that 
 if the captain of a privateer ship has wrongfully taken a 
 neutral vessel, and she should be lost in consequence of his 
 having put an ignorant prizemaster on board of her, the party 
 injured may sue, at his pleasure, the owner of the privateer, 
 the captain, his securities and every one of them, until he 
 recovers the whole amount of the damage, even though it 
 should by far exceed the value of the vessel that made the 
 capture." Let us now consider this subject in detail. 
 
 A doubt cannot be entertained of the liability of the captain 
 to the whole extent of the damage suffered in consequence 
 of his unlawful capture. He was employed for the purpose of 
 capturing enemies, not neutrals; if, therefore, he has made 
 prize of the latter, he has exceeded his authority, and is 
 consequently liable for all the damage which the neutral 
 has suffered. This principle is clearly sanctioned by the edict 
 of the states-general, of the 1st of April 1622; for, after 
 
 leers were directed to give security in 14,000, if the vessel carried more 
 than 150 men, and in half that sum if she carried less. Act of the 9th ofjuly 
 1798, $ 44 Laws U. S. 165. 
 
 In Spain, however, according to their prize ordinances of 1779 and 179G, 
 (we have not seen that which was probably made at the beginning of the 
 present war), security is only required from all privateers, without dis- 
 tinction, in 3000 rials de vellon, equat to 1500. T. 
 
 * Consil. Belg. vol. 4. Consil 205.
 
 TREATISE ON THE LAW OF WAR. 149 
 
 directing that security shall be given by the captains of priva- 
 teers, in the sum of ten thousand florins, that they shall bring 
 their prizes into the port from which they shall have sailed, 
 the law proceeds and says: " reserving, nevertheless, to those 
 who shall have suffered damage by any unlawful act com- 
 mitted by the captain beyond the extent of his commission, 
 their personal action against the said captain and others who 
 shall have occasioned the said damage." 
 
 As to the securities, the advocates who . subscribed the 
 opinion above mentioned, appear to me to have been mis- 
 taken; for, those securities cannot, I think, be made respon- 
 sible for the whole damage suffered, unless they have bound 
 themselves to that extent; but if they have merely stipulated 
 in a certain fixed sum, as is usual in such cases, they cannot 
 be made liable beyond its amount, nor can they be called upon 
 to answer for any other acts than those for which they have 
 expressly made themselves responsible; as for instance, if they 
 have become bound for the carrying of the prizes into a parti- 
 cular port, and the prizes have been actually carried thither, I 
 conceive that they are discharged, and that it is nothing to 
 them, whether the captures have been lawfully or unlawfully 
 made, unless they have bound themselves for that likewise. 
 But because captains of privateers are in general so poor, that 
 they are not able to make good the damage which they have 
 occasioned, and because the securities are not in general 
 bound beyond a certain sum, which, after being compelled 
 to pay, they may recover back by an action against the owners, 
 it is upon the owners that the whole burthen falls in the end. 
 Let us, therefore, as to them, inquire in the first place, whether 
 they are liable for the whole of the damage suffered, or whe- 
 ther, as in the actio de pauperie and actio noxalisj* they are 
 
 * The first of these actions was given by the Roman law against the 
 owner of a quadruped, which had done an injury to some person, by kick- 
 ing, biting, &c. which was called pauperitm facers. See on this subject, the 
 title of the Digest, si quadrupes pauperism fecisse dicatur. Dig. 1. 9. tit. 1. 
 
 The actio noxalis lay against the master of a slave for a theft or other 
 injury done or committed by him. Dig. 1. 9. tit. 4. De noxalibus actionibus. 
 
 In both these cases, the owner or master was discharged by delivering 
 up the quadruped or the slave.. T.
 
 150 TREATISE ON THE LAW OF WAR. 
 
 only bound to the amount of the value of the privateer and 
 her appurtenances? 
 
 A question of this kind was formerly brought before the 
 supreme court of Holland. Five Dutch privateers had unlaw- 
 fully taken a Venetian ship. The owners of the captured vessel 
 at first instituted a suit against the captains of the privateers, 
 and obtained a judgment, by which they were condemned to 
 restore the vessel only, without damages. But as the sentence 
 was not complied with, they then brought an action against 
 the five owners, contending, that they should jointly and se- 
 verally be condemned not only to restore the vessel, but also 
 to pay damages. The court, by their decree of the 31st of 
 July 1603, condemned the owners jointly and severally, to 
 restore the vessel and her cargo, and if that could not be 
 done, then to pay their appraised value; but the sentence 
 contained an express clause, that execution of it should 
 be made only on the five ships which had made the cap- 
 ture, and that the owners should not be bound beyond their 
 proceeds. 
 
 On the strength of this precedent, respectable lawyers have 
 given their opinion to the same effect,* but I cannot concur 
 with them, because I think, that when the owners of a priva- 
 ,teer ship put a captain on board of her to make captures, they 
 /are bound for the whole of the damage that he may occasion. 
 The master who captures, in consequence of an authority that 
 he has received, is appointed for that particular purpose, and 
 he who appointed him, is by that alone, responsible for every 
 thing, good or bad, that he may do in the execution of his 
 trust. Thus we give the actio institoria] against the proprietor 
 of an inn, who has appointed an innkeeper; if the innkeeper 
 makes any contract, we do not distinguish in what manner or 
 with what intent he did it; and thus also we give the actio 
 exercltoria\ against the owner of a vessel for the act of the 
 
 ' Consil. Holland, vol. 3. Consil 221. 
 f See the Digest, 1. 14. tit. 3. De institorid actione. 
 
 | Dig. 1. 14. tit. 1. De exercitoria actione. This title will be found trans- 
 >Y !;ited into English, in the dmericaj! Law Journal, vol. ii. p. 462. T.
 
 TREATISE ON THE LAW OF WAR. 
 
 master, provided the latter acted in the course of his employ- 
 ment as such; if otherwise, the owner is not bound, as Ulpian 
 fully demonstrates.* The appointment is the sole cause why 
 the proprietor of the inn and the owner of the vessel are re- 
 sponsible, if what has been done belonged to the business for 
 which the authority was given, and not to some other one, 
 different from it. He who appointed the captain of a privateer 
 must have known, that his business was to make captures, and 
 that if he should execute it improperly, it would be imputed 
 to the owner for having appointed a dishonest or an unskilful 
 captain. If the master having borrowed money for the repairs 
 of his vessel, applies it to his own use, Ofilius tells us very 
 properly, " that the owner is liable and must impute it to 
 himself that he employed such a person."f Wherewith agrees, 
 what the states-general say at the close of their decree of the 
 22d of October 1627, " that the owners must take care that 
 they employ proper captains." 
 
 If the proprietor of an inn is liable for the acts of the inn- 
 keeper, and the owner of the vessel for those of the master, 
 it clearly follows, that they are so to the amount of their whole 
 property, and that they are not discharged by delivering up 
 the inn or the vessel. I do not remember to have seen this 
 doctrine contradicted any where, nor could it be contradicted 
 with any appearance of reason, for nothing is clearer, than 
 that those who are responsible for the acts of others are so to 
 the whole extent of the damage which they may occasion, and. 
 therefore the owners of a privateer are bound to make good 
 in toto, the damage suffered by the illegal spoliations of their 
 captain. 
 
 The laws which I have already mentioned, afford strong 
 arguments in favour of this principle. The owners of priva- 
 teer ships are bound to give security, formerly in twelve 
 thousand, now in thirty thousand florins, that no injury shall 
 be done to an ally or neutral. Now, if they are not personally 
 bound to a farther extent than the value of the vessel, why is 
 
 * ff. de exercit act. 1. 1. . 1?, 
 t Ibid, 9.
 
 152 TREATISE ON THE LAW OF WAR. 
 
 a specific sum required which may, in many instances, greatly 
 exceed that value? If the law had meant that the value of the 
 ship should fix the extent of their responsibility, it should 
 have directed her to be valued, and ordered security to be 
 taken in the precise amount of the valuation. A still stronger 
 argument may be drawn from the Forma of the 28th of July 
 1705; for, by that law the owners themselves are declared 
 to be liable for the damage which may be suffered by the 
 wrongful acts of the privateer ship, and every thing belonging 
 to her equipment is made subject to a special lien or tacit 
 hypothecation to answer for that damage. Away, then, with 
 the doctrines which are drawn from the Roman laws, on the 
 subject of the actio de pauperie and actio noxalis. These do 
 not apply to the present question, and are founded on quite 
 different principles. 
 
 We must therefore conclude, that the supreme court, in the 
 case above mentioned, gave an erroneous sentence; for, if the 
 owners of the privateer ships had appointed the captains who 
 took the Venetian vessels, and had authorized them to make 
 captures, they were bound for the whole, in the same manner 
 as they would have been if they had appointed those captains 
 for mercantile purposes, and had given them authority to 
 make commercial contracts. Perhaps, however, it will be 
 said, that the report does not expressly state, that those five 
 vessels were privateers; but if they were not such, it cannot 
 be said, that the owners gave authority to their captains to 
 make captures, and in that case, I would wish to know, why 
 the court condemned the owners to the restitution of the 
 Venetian ship and cargo, and awarded execution even against 
 the vessels of those owners, and thus condemned them for an 
 act which was not within the authority committed to their 
 captains, which is evidently contrary to the most familial- 
 principles of law. In such a case, therefore, the owners of a 
 vessel cannot be made in any manner liable; for they, indeed, 
 have put the master in their place and stead, but merely as to 
 the business which they have ordered him to transact, and if 
 in the course of that business, the master had committed a
 
 TREATISE ON THE LAW OF WAR. 153 
 
 fault, or has been guilty of fraud, they are bound to answer 
 for him, otherwise not. If I give to a carpenter a vessel to 
 repair, and he gives it to his apprentice, who, with one of his 
 master's own tools, happens to kill somebody, the master 
 will not be at all answerable for it. Therefore, the action 
 against owners of ships cannot be assimilated to the action de 
 pauperie, except so far as it makes the owner of a horse or 
 mule liable, if by the fault of his driver, the animal has done 
 some damage, but the analogy of that law does not reach 
 farther. 
 
 Agreeably to the doctrines which I have contended for, 
 owners of vessels will clearly not be liable, if they have not 
 appointed the master for the purpose of making captures, 
 otherwise they will be responsible, not merely to the amount 
 of the value of their vessels, but to that of their stipulations, 
 which formerly were of 12,000 and now are of 30,OOO florins. 
 In addition to that, those who have suffered the damage, may, * 
 by virtue of the decree of the 22d of October 1627, sue the se- 
 curity of 10,000 florins, which the captain is obliged to give, 
 that he will bring his prizes into the port from whence he 
 sailed, for so the decree expressly provides. I think, however, 
 that such a demand would be unjust, unless it had been made 
 known to the securities, at the time of their entering into 
 the stipulation, that they would be exposed to that liability, 
 and had agreed to it; for if they had simply engaged, as is 
 almost always the case, that the captain should return with 
 his prizes to the port from whence he sailed, I cannot express 
 how unjust it appears to me, to make them liable on that 
 security for any other cause; as I have already hinted, when 
 speaking on the subject of securities.* But if all that I have 
 mentioned is not sufficient to repair the damage, what shall 
 we say in such a case? Are the owners to be held further? I 
 think that they are, until they shall have made good the whole 
 damage; for, it is clear, that a pledge or security does not 
 liberate a debtor, unless it is fully sufficient to discharge the 
 dbt.f 
 
 * Above, p. 149. 
 
 f ff. de Distract. Pign. 1. 9. I 
 
 f U
 
 154 TREATISE ON THE LAW OF WAR. 
 
 Moreover, if the vessel, which we are speaking of, be not a 
 privateer, that is to say, if she has no commission, but never- 
 theless makes captures by order of the owners, I think that 
 the same thing is to be said as if she really were a privateer; 
 for, the right arises out of the authority and the appointment, 
 and it is nothing to those who have suffered the damage, 
 whether they are injured by a real privateer or by a vessel 
 not provided with a commission.
 
 TREATISE ON THE LAW OP WAR. 155 
 
 CHAPTER XX. 
 
 Of Captures made by vessels not commissioned. 
 
 TT is properly made a subject of inquiry, whether, if a ship 
 -* not commissioned to make captures is attacked by an 
 enemy, and in her defence, or from some other justifiable cause, 
 takes an enemy's vessel, to whom in such case the prize is to 
 belong? Three contending parties appear, who seem to have 
 an equal claim to it, and in favour of each of whom many 
 ingenious arguments may be adduced; they are the owner of 
 the ship) the captain and mariners^ and the shipper who may 
 have taken her to freight. 
 
 On behalf of the owner of the ship, it may be said, that he 
 is entitled to the prize, because it was taken with his own ship 
 and guns, and because the captain and men who effected the 
 capture were in his employ, and bound to labour for his be- 
 nefit: it ought not to be given to the captain nor to the 
 mariners, because they are not entitled in law to any thing 
 besides their wages, nor to the freighter, because he only 
 hired the vessel for the transportation of his merchandize, 
 and for nothing else. 
 
 The master and mariners^ however, may plead that the 
 capture was achieved by their prowess and with the danger of 
 their lives, and therefore, that they are justly entitled to the 
 benefit resulting from it: that with respect to the owner of 
 the ship and the freighter, they cannot in justice claim the 
 prize, because they had not hired him to make captures, and 
 the contract which they had made together, was for pur- 
 poses of a quite different nature. 
 
 And lastly, on the part of the freighter, it may be argued, 
 that he had hired the ship, the guns, the master, the mariners, 
 and the right to their labour, not only for the transportation
 
 156 TREATISE ON THE LAW OF WAR. 
 
 of his merchandize, but also for the defence of the ship for 
 the sake of the goods that it contained, which defence is to be 
 taken with every thing incident to it, and involves the right 
 not merely of repelling, but even of capturing the enemy, to 
 prevent his doing any injury. That on these grounds, he is 
 justly entitled to retain the prize, and it ought by no means 
 to be given to the owner of the ship, his captain or mariners, 
 who all ought to be satisfied with the stipulated reward for 
 the hire of the vessel and their labours. 
 
 Such are the arguments which may be made use of in sup- 
 port of each of the above opinions. Before I proceed to state 
 my own, I must premise, that there exists a decree of the 
 board of directors of the West-India company, by which it is 
 provided, " that fifty per cent, of the proceeds of every prize 
 which shall be taken by a vessel hired out on freight, shall be 
 paid to the company." This decree has been sanctioned by 
 the states-general, and inserted in the instructions of the 15th 
 of July 1 633, for privateers cruising in the American seas. 
 
 It is clear, that the directors, when they made that decree, 
 attended only to the interest of their company, nor had the 
 states-general any thing else in view when they gave it their 
 sanction; for, they made no rule whatever in this respect for 
 other privateers than those above mentioned. It must, there- 
 fore, be considered as a special law, made with a view to 
 particular persons and circumstances, and which is not to pre- 
 judice other cases to which it is not directly applicable. 
 
 As I have never seen a general law upon this subject, nor 
 do I believe that any exists, the question is to be decided by 
 the light of reason alone. On equitable principles, I think that 
 the prize ought to be adjudged to the captain of the capturing 
 vessel and his crew, and not to the owners or freighters. The 
 latter, indeed, are the last who will be thought of. The owner 
 of the ship appears better entitled, but still I would prefer to 
 him the captain and crew. Others, however, have been of a 
 different opinion.* 
 
 * In a case of salvage, which bears the strongest analogy to a case of 
 unauthorized capture, (on the supposition that any persons, others than the 
 sovereign of the captor, may be considered as entitled to the prize,) the late
 
 TREATISE ON THE LAW OF WAR. 157 
 
 In the year 1667, a ship sailing under a license from the 
 French and Dutch West-India company, which had been 
 granted to the freighters, captured an English vessel within 
 the company's limits. The captors determined to keep the 
 prize with them, though she was a worse sailer than their 
 own vessel, because on consulting together, they agreed, that 
 it was most advisable for the interest of the owners and 
 freighters, as well as their own, that she should be carried 
 into one of the West-India islands, where it was expected she 
 would sell to better advantage. The question then occurred, 
 to whom that prize was to be adjudged? The lawyers who 
 were consulted on that question, decided, that the mariners, 
 because they had been hired at a fixed salary by the month, 
 and had not engaged themselves for shares of prize-money, 
 should only have one tenth of the proceeds, and that the re- 
 mainder should be equally divided between the owners and 
 freighters. 
 
 I do not know upon what principle those gentlemen allowed 
 one tenth to the mariners, nor perhaps did they know them- 
 selves. It seems, that they had no difficulty as to the one half 
 of the remainder, which they gave to the owners of the ship ; 
 and therefore, they pass it over without assigning any reason 
 for it; but they endeavour to justify, by argument, the allow- 
 ing of the other half to the freighters. They contend, that it 
 was by virtue of the license which the shippers had obtained 
 from the West-India company, that the vessel was permitted 
 to navigate to the West-Indies, that therefore they contributed, 
 in a considerable degree, to the capture, and ought not to be 
 placed in a worse situation than the owners of the ship. They 
 say, that the mariners did not take the prize for the benefit of 
 the owners of the ship only, but also for that of the owners 
 
 judge Winchester, district judge of Maryland, allowed one ninth part of the 
 neat salvage to the owners and freighters of the salvor-ship, in proportion 
 to their respective interests, in consideration of the risk to which their 
 property had been exposed. The supreme court of the United States, before 
 whom the cause was ultimately carried by appeal, increased the allowance 
 to one third. The remainder was distributed among those who had been 
 personally instrumental in the salvage. The JSlaircau, 2 Cranch's Report*. 
 240. T.
 
 158 TREATISE ON THE LAW OF WAR. 
 
 of the merchandize, and that they declared it themselves, in 
 the resolution which they took, 1 as above mentioned, to carry 
 the prize into one of the West-India islands, for the best ad- 
 vantage of the owners and freighters. To these they add, a 
 variety of other trifling and frivolous arguments; as for in- 
 stance, that the possession of things is not acquired merely by 
 ourselves, but also by those persons who are employed by us; 
 that the owners of the ship were not present any more than, 
 the freighters, when th capture was made, and that if the 
 ship, instead of capturing, had been captured, the owners of 
 the goods on board would have suffered a considerable loss. 
 
 But I am not at all convinced by such arguments as these, 
 nor by those which I have mentioned above, in favour of the 
 owners of the capturing ship; for, it is clear, that a prize by 
 whomsoever taken, belongs solely to the captors, unless they 
 acted by the command or under the appointment of another 
 person. The only question, therefore, is, zvho took the prize? 
 and it is manifest, in this case, that it was the master and 
 mariners, and that they did not do it by the command or 
 direction of another. Their services were, indeed, hired, but 
 for the mere purpose of carrying goods, and for nothing else: 
 Whatever advantage, therefore, may arise from the carrying 
 of the goods, ought to be for the benefit of those who have 
 made use of the agency of others for that purpose; but neither 
 they, nor the owners of the ship are entitled to any share of 
 the prize, because the mariners were not employed to make 
 that capture, but, while they were attending to a business of a 
 quite different nature, to the mere navigation of the vessel, 
 fortune threw something else in their \vay,fortuna aliud dedit y 
 as Tryphonius elegantly argues, in an analogous case.* For 
 the same reason, in the case of a labourer, who, digging the 
 ground, had found a treasure, I gave it as my opinion, that 
 he was entitled to it.f The condition of the labourer in that, 
 and, for the same reason, of the mariner in the present case, 
 does not extend farther than the business for which they 
 were hired. Whatever is out of it, that is to say, whatever is 
 
 * ft', de Adquir. Rer. Dom. 1 63. 3. 
 | Obs Jur. Rom. 1. 2. c. 4.
 
 TREATISE ON THE LAW OF WAR. 159 
 
 foreign to the subject of their contract, they are alone to 
 suffer or enjoy, whether it be profit or loss. 
 
 This case clearly comes within the general doctrine of 
 principal and agent. Now, the agent shall certainly not im- 
 pute to his principal, that he was robbed by highwaymen, lost 
 his property by shipwreck, or that he or his family being taken 
 sick, he had spent a sum of money which had been put into 
 his hands for a particular purpose; for, such occurrences are 
 more properly to be imputed to accident than to the agency, 
 as Paulus justly observes.* Such losses as these follow the 
 person of the agent; while on the other hand, it is natural, as 
 Paulus also very correctly says, that " those gains and advan- 
 tages which happen by occasion of the agency, should follow 
 it."f If A has sent B to carry something to 6?, and B, in the 
 way, has found a sum of money, or has extorted something 
 from a highwayman who attempted to rob him, no one, cer- 
 tainly, whose mind is not very weak, shall think that the money 
 which B has so extorted, belongs to A, although the things 
 which he was sending to C might have been endangered by it. 
 He did not order B to find money, nor to extort any thing 
 from highwaymen, but to carry some articles, which he did 
 carry, and his agency being thus fulfilled, A has nothing more 
 to ask of him. 
 
 The arguments of the advocates on the subject of the pre- 
 sent question are really trifling. The license which the freighters 
 had obtained from the West-India company could not avail 
 them to make prizes, but only to navigate in the American 
 seas. Nor are we to cavil about the words of the resolution 
 of the mariners above mentioned, when they are susceptible of 
 so many different interpretations. I think that they had no 
 other object in view than to retahi the prize with them, to 
 whomsoever it might belong, whether to the owners, the 
 freighters or themselves, or that the words rather signified, 
 that they meant to divide it into three parts, and to give one 
 to each of the said parties. Or perhaps (saving the decree of 
 the board of directors) they might have believed that the 
 
 * ff. Mamlat. 1. 26. 6. 
 t ff. De Re. Jur. 1. 10.
 
 160 TREATISE ON THE LAW OF WAR. 
 
 prize belonged to them alone; as if the vessel was laden with 
 provisions or other necessaries of life, which they themselves 
 were in need of, and thus might be useful to the owners of 
 the ship and goods, by enabling them to prosecute the voyage, 
 or they might have had various other motives of the same 
 kind. And who will dare to suppose, that those mariners 
 weighed and considered so particularly the words of their re- 
 solution, and that if the prize did belong to them, they wished 
 to abandon their claim to the whole of it? Nay, if they had 
 even believed that it did not belong to them, but to the owners 
 and freighters, who would not excuse their simple honesty? 
 He, who, thinking, that what is his own property belongs to 
 another, gives it up to him, is not to suffer by it. Let not an 
 error in point of law, be objected to those good mariners, since, 
 as well from the resolution itself as from other circumstances, 
 it appears that they made no final determination, and it is suf- 
 ficiently clear, that they never had an intention to give up any 
 right to which they might be entitled. It is true, however, 
 that if they had fought more than was necessary for their de- 
 fence, and the ship or goods had suffered by it, they would 
 have been bound to an indemnity by the terms of their 
 contract. 
 
 On these principles, a cause was formerly decided by the 
 court of Brussels, which I think, bears a strong analogy to 
 the present case: A person had lent a horse to the command- 
 ant of a corps of cavalry, to fight with; the court were of 
 opinion, that the lender of the horse was not entitled to a share 
 of the booty which the officer took with it. I fully approve of 
 the legality of this sentence, though it has been doubted by 
 some, and Zouch* refers us to a contrary opinion, given 
 by Petrinus Bellus;\ there was, however, in that case, much 
 more equity in favour of awarding a part of the booty to the 
 officer, as it was nothing to him, whether the person to whom 
 he lent his horse, should fight or not. And yet, he had no 
 more right to the prize, than one who lends his net to another, 
 has a right to the fish that he takes with it. 
 
 * Be Jure Fee. p. 2. 8. Q. 17. 
 
 - DC Re Milit. P. 4. tit. 8. n .
 
 TREATISE ON THE LAW OF WAR. 161 
 
 It will be said, perhaps, that I am wasting words on an idle 
 and useless question, as it is unlawful to make captures with- 
 out a commission from the states-general, or the admiral, and 
 so far from the one who takes a prize without such a commis- 
 sion, being entitled to it, he is rather to be considered as a 
 pirate, agreeably to the principles which I have above con- 
 tended for. But this does not follow in every case. Grotius 
 very properly says,* that " a private capture is acquired to a 
 private captor, and there can be no doubt, that a prize taken 
 under circumstances of necessity, by non-commissioned vessels, 
 belongs to those who have taken it." I know, that the authority 
 of Pujfendorjf] is adduced to the contrary, but he does not 
 contradict this doctrine; for he speaks of those, who, without 
 any authority, go out for the express purpose of making cap- 
 tures, not of those, who, being attacked by an enemy, turn 
 upon him in their own defence, and these are the persons that 
 I am speaking of. If, in such a case, it is denied, that it is 
 lawful to take the enemy's property, it must be denied also, 
 that it is lawful to despoil him, who otherwise will despoil 
 us, and there must be an end to the right of self-defence. 
 And yet, every declaration of war not only permits, but ex- 
 pressly orders all good and loyal subjects, to injure the enemy 
 by every possible means, that is to say, not only to avert the 
 danger with which the enemy threatens you, but to capture:): and 
 strip him of all his property. The case is different with those 
 who sail out on cruises, without a commission, and without 
 complying with the previous requisites of the law, because 
 they are prohibited from doing so by various edicts of the 
 states-general. But how can he be expected to have a com- 
 mission, who, sailing merely for the sake of trade, meets an 
 enemy who attacks him, and captures him in his own defence? 
 If Grotius and Puffendorjf had explained themselves in this 
 
 * De Jure B. ac P. 1. 3. c. 6. 10. 
 
 f De Jure N. and G. 1. 8. c. 6. 21. 
 
 f We have not meant to include such justifiable captures by non-com- 
 missioned vessels, in our definition of piracy, above, p. 128. We have, 
 therefore, used in it the word depredations, as implying illegality, ex ,r
 
 . 
 
 162 TREATISE ON THE LAW OF WAR. 
 
 manner, those who now find fault with both, would have had 
 no occasion to do it.* 
 
 * In France and Great-Britain, prizes taken by non-commissioned vessels 
 belong to the lord high admiral, as a droit of his office. 1 Valins Comment. 
 79. British order in council, of the 6th of March 1665-6, in a note to the case 
 of the Rebecca, 1. Rob. 193. Amer. edit. No distinction is made, whether the 
 captor did or not make the capture in his own defence, or from some 
 other justifiable motive. But, as in Great-Britain the office of high admiral 
 is vested in the king, and has for a long time been executed by commis- 
 sion, suitable rewards are given, at the discretion of the government, in 
 meritorious cases. And we presume, that the government of France is not 
 backward in displaying its liberality on similar occasions. T.
 
 TREATISE ON THE LAW OF WAR. 163 
 
 CHAPTER XXI. 
 
 Of Insuring enemy's property. 
 
 to the contracts of purchase, sale and hire,* there 
 is none, at present, in more frequent use, in commercial 
 countries, than that of insurance. It was, however, so en- 
 tirely unknown to the ancients, that no trace of it is to be 
 found in the volumes of Roman jurisprudence. The reason 
 probably is, that commerce was not at that time carried on to 
 the same extent that it is at this day. Perhaps, also, the fleets 
 of the Romans secured their merchant vessels from depre- 
 dations at sea, or the vast extent of their empire, bordering on 
 all the seas which their navigators were in the habit of fre- 
 quenting, dispelled all fears of enemies. Nor was there so 
 much to be feared as there is at present from the dangers 
 of the ocean, as their vessels generally sailed coastwise, pru- 
 dently keeping within a small distance from the shore, and 
 did not venture out to sea in the winter months,! whereas 
 our ships at present sail out to any distance, and we trust them 
 at all times and in all seasons to the treacherous element, 
 without knowing whither the fates may carry them. 
 
 I have read, however, in Sueiomus^s life of the emperor 
 Claudius, that during a time of great scarcity, when the people 
 abused him, and shewed him, by way of reproach, fragments 
 of stale bread, he not only gave great encouragement to the 
 
 * Locatlo, hiring or letting to hire. At the civil law, the signification of this 
 word is very extensive; locatlo operum, is when a man hires out or engages 
 his labour to another for a specific reward; locatlo rerum, is the hiring or 
 letting to hire or farm (as we call it) of property of any kind, whether real, 
 personal or mixed. T. 
 
 f Ex die tertio Iduum Novembris, usque ad diem sextum Iduum Martii 
 mana dauduntur. The seas are closed from the eleventh of November, to 
 the second of March. Veget. de Re Milit. 1. 4. Justinian's code permits na- 
 vigation from the first of April to the first of October. Cod de Nattfrag. \. ". 7
 
 164 TREATISE ON THE LAW OF WAR. 
 
 building of ships, but proposed certain profits to the merchants, 
 taking upon himself the risk of any loss that might be occa- 
 sioned by the violence of the winds and seas. This was a 
 species of insurance, which is nothing else than an engage- 
 X(ment for the safety of another's property, by which the owner 
 is liberated from the risk, which is assumed by the insurer, 
 in consideration of a certain prsemium.* Claudius, indeed, 
 assumed upon himself the dangers of the sea, but he did it 
 gratuitously and not for the consideration of a pramium or 
 reward; nor did he undertake to bear the losses which might 
 be suffered from pirates; therefore, I say that it was only a 
 species of insurance.! 
 
 I have premised a definition of the contract of insurance, 
 in order to make it appear, that the reason of war absolutely 
 requires the prohibition of insurance on the ships, merchandize 
 or other property of enemies. For, what else is assuming the 
 risk to which their property may be exposed, than promoting 
 their maritime commerce? The object of insurance is, that 
 maritime trade may be carried on with the greatest possible 
 profit, and the least possible loss. Hence, the states-general, 
 on the 1st of April 1622, while we were at war with the 
 Spaniards, issued an edict, annulling all insurances made and 
 to be made by Dutch subjects on Spanish property, and laying 
 a fine of one hundred pounds, Flemish, on all who should act 
 
 * The definition, which our author gives of the contract of insurance, is 
 very similar to that which had been given, long before him, by Roccus, 
 which is still the most logical and comprehensive of all that have ever been 
 offered. " Insurance," says that able writer, in the excellent translation of 
 his two treatises, Con ships and freight and on insurance J, lately published at 
 Philadelphia, by Mr. J. R. Ingcrsoit, " is a contract by which a person as- 
 sumes upon himself the risk to which the property of another may be 
 exposed, and binds himself, in consideration of a certain premium, to in- 
 demnify him in case of loss." Ingersoll's Roccus, p. 85. T. 
 
 f For a full and complete view of all that is to be found in the works of 
 the ancients which may be considered as having any relation to the subject 
 of insurance, see Mr. Park's introduction to his System of the Lai of 
 Marine Insurances, which is fraught with a great deal of information on this 
 particular subject, from whence Mr. Part justly concludes with our author, 
 , that the contract of insurance, as at present understood, was not known 
 to the ancient Creels and Rotnam. T.
 
 TREATISE ON THE LAW OF WAR. 165 
 
 to the contrary. This was extremely proper, because, in all 
 declarations of war, the subjects are ordered to do as much 
 harm as they can to the enemy, and therefore, it follows, that 
 they are prohibited from doing them any good. Such are the 
 rules prescribed by the general law of war, and the states- 
 general did no more than declare that law during the war with 
 Spain, by their edict of the 2d of April 1559. 
 
 It may, perhaps, be said, that such insurances are productive 
 of more profit than loss to the insurers, and therefore, that they 
 are more advantageous to us than to the enemy. But this may 
 prove a very fallacious reasoning, for the result of insurances 
 on enemy's property, is, in a national point of view, very un- 
 certain, nor does experience sufficiently enable us to judge of 
 their effects upon the nation at large; while on the other hand, 
 it is very certain that the enemy thereby acquires the means 
 of extending his maritime commerce. It therefore, follows, 
 that what is certainly useful to our enemy, and almost as cer- 
 tainly threatens our own destruction, is, on every principle, to 
 be prohibited.* 
 
 * Trading with enemies, and insurances on enemy's properly have been 
 prohibited, from the earliest times, in almost every country of Europe. 
 England and Holland are the only ones that are known to have pursued, for 
 a while, a different policy. The ordinance of Barcelona, made in 1484, 
 expressly forbids such insurances to be made, directly or indirectly, no 
 fuxen esser aseguradas directamen o indirectamen. Cleirac, Us (Sf Coutumes 
 de la Mer, p. 118. Consol. del Mar. ("Boucher's Fr, transl.) vol. ii. p. 717. 
 1540. Le Guidon, a very old treatise on maritime law, declares it to be 
 unlawful to trade with enemies, and to make insurance on enemy's property, 
 c. 2. art. 5. in Cleirac, p. 117. Mr. Valin mentions several ancient ordinances 
 of France to the same effect, which shew, that the law was always so under- 
 stood in that country. But he observes that the English, during the seven 
 year's war, were in the habit of insuring the property of the French, even 
 ivhen bound from a French port to a French colony, or from one French port to 
 another. " By this means," says he, " one part of the nation restored to us, 
 by the effects of the contract of insurance, what tiie other took from us by 
 the law of war." 2 Valin' s Comm. p. 32. 
 
 It is certain, .that in England, not only during that war, but during that 
 which immediately preceded, and that which immediately followed it, 
 that is to say, during a period of near half a century, trading with enemies, 
 and insurances on enemy's property were carried on to a great extent, and 
 Vfere sanctioned by the decisions of the tribunals of that country. In the
 
 166 TREATISE ON THE LAW OF WAR. 
 
 This reason alone would have been sufficient to justify the 
 said edict of the 1st of April 1622, but it also adverts to a 
 consequence that would follow, if those insurances should be 
 
 year 1749, lord Hardwicke considered an insurance as legal, which had been 
 made on an English vessel that had been sent to Ostend, to be neutralized, 
 and from thence to trade with the enemy, under cover of the neutral flag. 
 He said, that "it had never been determined, that insurance on enemy's 
 ships, during the war, was unlawful; and that it might be going too far to 
 say, that all trading with enemies was prohibited by law, for the general 
 doctrine would go a great way, even when English goods were exported, 
 and none of the enemy's imported, which might be very beneficial." 
 Henklev. Royal Exch. Ass. Comp. \ Ves. 317. 
 
 During the American war, insurances of this description were neither 
 less frequent nor less favoured by the English tribunals. Planch* \. Fletcher, 
 was the case of a Swedish ship, laden for French account, and bound directly 
 from London to Nantz, with a simulated destination for the neutral port of 
 Ostend. Doug.'25\. Thellttsson v. Ferguson, was an insurance on a. French ship, 
 which had sailed under French convoy from a French colony to a port in 
 France. Ib. 361. In both these cases, the property insured had been con- 
 demned by the English court of admiralty, but the insurances were, never- 
 theless, held valid; and thus, the courts of common law sanctioned and en- 
 couraged the same acts which the courts of admiralty punished. In the former 
 case, it was objected, that in time of war, the exportation of enemy's pro- 
 perty, even in neutral bottoms, was illegal, and that an insurance upon such 
 goods was void; but, lord Mansfield, overruled the objection. " It does not 
 appear," said he, " that the goods were French property; an Englishman 
 might be sending his goods in a neutral ship. But it is indifferent whether 
 they were English or French; the risk insured, extends to all captures." 
 Doug. 252, 253. It is but justice, however, to observe, that sir William 
 Scott has expressed doubts of the correctness of the report of this decision. 
 The Hoop, 1 Rob. 182. Am. ed. But, in a subsequent case, Gist v. Mason, 
 which was decided on by the court of king's bench, in the year 1786, 
 lord Mansfield appears to have been even astute, to establish his favourite 
 doctrines, and to give, as much as possible, a legal sanction to the trade 
 of British subjects with enemies, and to their insurances on enemy's 
 property. 
 
 This was not a case of insurance on property belonging to enemies, but 
 on English property shipped on board of a neutral vessel, employed in the 
 1 rade between Ireland and the enemy's colonies. The report does not state, 
 whether the insurance was on the ship and goods, or on the vessel only, 
 hut it could not have made any material difference; because, if it was un- 
 lawful for British subjects to ship their merchandize to the French colonies, 
 the means could not be legal, when the end was prohibited. 
 
 In this case, lord Mansjield is reported to have said: " This, on the face 
 of'i1, \K the case of a. neutral vessel. It is no where laid down, that policies on
 
 TREATISE ON THE LAW OF WAR. 167 
 
 considered as lawful. The very property taken by our own sub- 
 jects from the enemy, might be claimed by the underwriters. 
 And why should it not, if their contract was legal? It is well 
 
 neutral property, though bound to an enemy's port, are void. And, indeed, I 
 know of no cases, (except two, both of which are short notes,) that prohibit 
 a subject trading with the enemy. By the maritime law, trading with an 
 enemy, is cause of confiscation in a subject, provided he is taken in the 
 act, but this does not extend to neutral vessels" 1 Term Rep. 85. Lord 
 Mansfield here appears to have, as much as possible, kept the cargo out of 
 view, and to have endeavoured to palliate the illegality of its destination, 
 by holding up the neutrality of the vessel. 
 
 As to the expediency of permitting such insurances, he expressed himself 
 in a clear and decided manner. " It is," said he, " for the benefit of the 
 country, to permit these contracts, upon two accounts; the one, because you 
 hold the box, and are sure of getting the premiums, at least, as a certain 
 profit the other, because it is a certain mode of obtaining intelligence of 
 the enemy's designs." Park on Ins. 316. 6th edit. 
 
 But, during the last war, the tribunals of England entirely discarded their 
 former ill judged policy, and restored, to all appearance, on a firm basis, 
 the ancient principle of the law of nations. In the year 1794, a death blow 
 was given to insurances on enemy's property, in the cases of Brandon v. 
 Nesbitt, and JSristow v. Towers. 6 Term Rep. 2.3. 35. Nothing, however, was 
 finally decided, as to the legality of trading with an enemy, until sir 
 William Scott, in the year 1799, gave his able and luminous judgment, in 
 the case of the Hoop, Cornells, 1 Rob. 165. Am. ed. which was soon followed 
 by that of the court of king's bench, in Potts v. Bell. 8 Term Rep. 548, in 
 which it was held to be illegal, on general principles, for a subject to trade 
 with an enemy. We observe with pleasure, that these decisions were 
 principally founded on the authority of the irresistible arguments of our 
 author in the present chapter; it is not the only instance in which he has had 
 the honour of giving the law to the tribunals of the great nations of Europe. 
 
 That lord Mansfield made the well known principles of the law of nations 
 yield to his favourite policy, is at present too well authenticated to be 
 denied. " On the legality of these insurances," says Mr. Justice Buller, " I 
 never could get him to reason. He never went beyond the ground of ex- 
 pediency." Bellv.Gilson. 1 Bos. & Pul. 354. " He always," says lord Alvanley, 
 " entertained doubts upon the law, and endeavoured to keep out of sight, a 
 question which might oblige him to decide against what he thought for the 
 benefit of the country." Furtado v. Rogers. 3 Bos. & Put. 197- 
 
 From this and other instances which might be adduced, it is evident, that 
 the law in England is made to subserve the great political interests of the 
 nation, and varies with the notions of policy that are entertained at different 
 times. It behoves us, therefore, to consider how far we are bound implicitly ' 
 to adopt the rules laid down by English judges, in cases which may affect 
 their political concerns, on the mistaken supposition that they are founded 
 on the principles of the ancient common law. The situation and interests of
 
 168 TREATISE ON THE LAW OF WAR. 
 
 known, that property insured, belongs in a certain manner to 
 the insurers, and they are, in a great degree, identified with the 
 owners, as appears by the printed policies that are in every 
 body's hands. If, then, the underwriters could thus claim 
 enemy's property, after it had been lawfully captured, it would 
 not only occasion a considerable loss to the captors, but it 
 would, (as the edict justly observes,) deter them from fitting 
 out vessels to cruise against the enemies of the state. Surely, 
 there can be nothing more directly in opposition to the law of 
 war.* 
 
 America and Great-Britain are known to differ in many essential points, and 
 therefore, the rules by which the one is led to prosperity, may prove greatly 
 injurious to the other. We have had frequent occasion to observe, that many 
 of their belligerent principles are entirely unsuited to our neutral situation, 
 and this is so true, that the state legislatures have been obliged to make 
 laws to counteract the effects of the application of British doctrines, as has 
 lately been done in Pennsylvania, with respect to the condusiveness of the 
 sentences of foreign prize courts. But, we observe also, with regret, that in 
 some of the states they have gone so far as to prohibit the reading or citing, 
 in courts of justice, of British adjudications of a date posterior to the 
 American revolution It is paying a poor compliment to the patriotism and 
 intelligence of the judges who grace the benches of our superior tribunals, 
 and a degrading tribute to the presumed superiority of British jurists, td 
 suppose, that their opinions would obtain an undue influence or ascendency 
 over those of our own countrymen. To the sound discriminating minds of 
 our enlightened judges, (aided from time to time by special legislative 
 acts,) it might safely have been left to decide, how far the principles 
 adopted by the tribunals of Great-Britain are consonant with our own 
 national policy, which undoubtedly is as much a part of our law, as that 
 of the English is a part of theirs. T. 
 
 * It does not seem to follow, because the loss suffered by the capture of 
 enemy's property may be recovered from the underwriters, that the property 
 itself may be recovered by the insurers from the captors; but the effect of 
 such insurances is certainly, as Valin happily expresses it, that the nation 
 which permits them, restores viith one hand what it takes with the other. 
 
 We cannot help adverting here to what might be considered as another 
 striking instance of injudicious policy, if we were not assured from high 
 authority, that it originated in misapprehension and mistake. We mean to 
 speak of the doctrine of conclusireness, as applied to the sentences of 'foreign 
 prize courts, which has so often frustrated, to the great loss of the parties in- 
 sured, the insurances made in England upon neutral property. The ships and 
 cargoes of neutrals are insured there for high war premiums, against capture 
 and its attendant confiscation by the enemies of Great-Britain; but, as the law 
 istinderstood in that country, (and surely the unfortunate neutral is not aware
 
 TREATISE ON THE LAW OF WAR. 169 
 
 So far, no fault can be found with the said edict of the 1st 
 of April 1622. But I have discovered a supplement to it, of 
 the 13th of May in the same year, by which it was declared, 
 that the edict should only operate on those insurances which 
 were or should be made after its publication; as if this was a 
 proper subject for the application of the rules of the Roman 
 code, on the subject of ex post facto laws.* It would seem, 
 
 of it, otherwise he would not subscribe to such an unequal contract), if 
 condemnation takes place, the sentence is in most cases considered as con- 
 clusive evidence of the property insured being enemy's property, and the 
 innocent neutral being 1 thus convicted of fraud, the insurer is allowed to 
 retain the praemium and to pay no loss. In this manner, premiums to an 
 immense amount, have been earned by English underwriters, without risk, 
 and neutrals have paid their money without being compensated for their 
 losses. Such are the effects of the celebrated doctrine of collusiveness of 
 foreign sentences, so justly reprobated by two of the greatest law characters 
 of our age, lords Thurlmv and Ellenborough; Donaldson v. Thompson, 1 Campb. 
 N. P. Rep. 429. These consequences were not contemplated, we are sure, 
 by the respectable judges of England; but they, nevertheless, certainly fol- 
 lowed, and at last it was found necessary to tolerate the evasion of that law 
 by a special clause annexed to policies of insurance; (Lothian v. Henderson, 
 3 Bos. & Pul. 499.) otherwise, the British insurance offices would have been 
 entirely deserted by neutrals. And yet it is supposed to be founded on a 
 principle of the law and comity of nations, which, we would presume, it does 
 not belong to Individuals to dispense with. 
 
 It is much to be wished, that this fatal doctrine may be exploded 
 throughout the United States, as it is in Pennsylvania and Ne-w-Tork. While 
 our property is more than ever exposed to the captures of belligerent 
 cruisers, and to the unjust condemnalisns of foreign tribunals, the effects' 
 of such a principle must be to deprive our citizens of the benefit of in- 
 surance in such cases, and thus to further the views of those powers who 
 may wish to check our commercial career. We do not receive immense 
 sums in premiums from foreigners; American property, principally, is insured 
 in our offices, and those insurances ought to be made as effectual as pos- 
 sible, that the risk and the loss may be divided among many, instead of 
 falling upon a few. It is true, that we, also, can evade the doctrine in 
 question, by a special clause; but a law which requires to be evaded is a snare 
 to the unwary, and is necessarily a bad law. 
 
 We beg leave to refer the reader on this subject to the able and con- 
 clusive opinion of the honourable judge Cooper, of Pennsylvania, delivered 
 in the high court of errors and appeals of this state, in the case of Dempsey 
 v. The Insurance Company of Pennsylvania, and published with an excellent 
 introduction, by Mr. Dallas; Philadelphia, Byrne, 1810. T. 
 
 * Leges & constitutionesfutiiris certum est dareformam negotiis, non adfacta 
 prtettrita revocari- nisi nominatim - de prxterito tcmpore, & ad/ntc pendenti&us 
 
 t Y
 
 170 TREATISE ON THE LAW OF WAR. 
 
 that the states-general considered that the insurance of ene- 
 my's property was legal, unless it was prohibited by an express 
 law, otherwise, there was no reason for not annulling those 
 insurances which were made before the publication of the 
 edict, as well as those which were made afterwards. The 
 edict had been very properly expressed in general terms, and 
 had made no such exception; and, as it did not enact a new 
 law, but was merely declaratory of the law of war, the supple- 
 ment is rather to be considered as an oversight of the legisla- 
 ture, than as a law actually binding. So much of the edict, 
 indeed, as inflicts a penalty, may very properly have been re- 
 stricted to future cases; but not so the prohibition itself: unless, 
 perhaps, we should say, that the insurance of enemy's pro- 
 perty had before prevailed to such a considerable extent, that 
 it had acquired the force of an ancient custom or usage. 
 Nevertheless, even if there should be a great many instances 
 of insurances of that description, I would not take it to be 
 such an usage as is considered to have the force of law, 
 unless it should be confirmed by an uninterrupted series of 
 judicial decisions. 
 
 The states-general, therefore, acted in conformity to the 
 law of nations, when, on the 31st of December 1657, they 
 made an edict, prohibiting the insurance of the goods of the 
 Portuguese^ with whom we were then at war; but I cannot say 
 the same thing of a clause which they added to it, by which 
 they extended the prohibition to the insurance of any mer- 
 chandize -whatever, going to or coming from the Portuguese 
 dominions: for, if those goods belonged to subjects of the 
 states-general, or to allies or neutrals, there was no reason to 
 prohibit their being insured, as the trade with Portugal was 
 not prohibited, except as far as related to contraband of war. 
 To these, therefore, the prohibition ought to have been re- 
 stricted; in other respects, the freedom of insurance ought to 
 have been co-extensive with the freedom of trade. The states- 
 
 7'cgotiis cantum sit. The laws are only to affect future and not past trans- 
 actions, unless made with an express reference to them. Cod. tie Legib. \. 7- 
 
 T.
 
 TREATISE ON THE LAW OF WAR. 
 
 general, however, on the 9th of March 1665, being at war 
 with England^ issued a similar edict, by which they pro- 
 hibited the insuring of any merchandize going to or coming 
 from the English dominions. They did the same thing on 
 the 9th of March 1689, during the war with France, and 
 thus interrupted the lawful commerce, not only of our own 
 subjects, but of foreigners.* It is thus, that edict-makers 
 content themselves with transcribing those of a prior date, 
 and when once an error (though ever so contrary to the 
 law of nations) has crept into one of them, it is copied, 
 without reflection, into every new law that is made on 
 the same subject, and no one troubles himself about rec- 
 tifying it. 
 
 Upon the whole, it appears, even from subsequent edicts of 
 the states-general, that it is not lawful to make insurance on 
 enemy's property; and because the thing is of daily occurrence, 
 I wish the prohibition had been inserted in all the general and 
 special laws which the states-general have enacted from time 
 to time, respecting that species of contract. I wish also, that 
 Straccha, Santerna, and other semi-barbarians, f who have 
 written on the subject of insurance, had left this question 
 entirely untouched, and had contented themselves with ob- 
 serving, that unlawful merchandize, as for instance, contra- 
 
 * It would seem, however, that although it is not lawful for a belligerent 
 nation to obstruct the commerce of neutrals with their enemies, yet they 
 may lawfully prohibit insurances on such trade within their own dominions, 
 and that such a prohibition is no more than the lawful exercise of the right 
 of municipal legislation. T. 
 
 f Our author is much too severe on those ancient writers, to whom we 
 are indebted for the first methodical treatises on commercial and maritime 
 laio. Nor has he spared that venerable work, the Cotisolato, (above, p. 44), 
 which has been the foundation of almost every subsequent maritime code. 
 Far from joining in his opinion, we wish that those books were more fre- 
 quently read and consulted than they are; they would be found to contain 
 many excellent principles, which, in our modern times, have been unfor- 
 tunately too much lost sight of. See the excellent decree of judge Davis, 
 (district judge of Massachusetts), on an important question, respecting 
 mariner's wages, the solution of which has been afforded him by a text of 
 the Cunsolato. 2 Amer. Laio Journ. 359. // Consol. c. 127. and in M. Boucher 1 -.: 
 translation, c. 130. vol. ii. p. 195. 321. ?',
 
 172 TREATISE ON THE LAW OF WAR. 
 
 band of war, could not be insured. For my part, I shall express 
 in a few words, what I conceive to be the law upon this sub- 
 ject. I think, that it is not lawful to insure any ships or goods 
 which are liable to capture by the law of war; but as to those 
 which cannot be made lawful prize, I see no reason why they 
 should not be insured. 
 
 I shall conclude with adverting to what some of our writers 
 have said on the subject of insuring goods which are liable td 
 condemnation. Grothis* is of opinion, that he who has insured 
 contraband goods, not knowing them to be such, is not bound 
 to pay the loss. Others have said,f that he who has subscribed 
 a policy in general terms, is released from his engagement, if 
 the owner of the goods insured turns out afterwards to have 
 been an enemy; for, enemy's property is never considered as 
 being included in a general description, but must be expressly 
 declared and made known to be such, to the underwriter.^ 
 
 * Consil. Holland, vol. 3. Cons. 175. 
 
 f Ibid. vol. 2. Consil. 322. 
 
 \ A very correct general rule has lately been introduced in England, upon 
 this subject. " Whenever," says Park, " an insurance is made on a voyage 
 expressly prohibited by the common, statute or maritime law of the country, 
 the policy is of no effect. Park on Ins- 307- 6th ed. Even though the in- 
 surance be made in general terms, a clause or proviso, excluding the pro- 
 hibited risk, is always considered as ingrafted in the policy. Furtado v. 
 Rogers, 3 Bos. ISf Pul. 191. Kellner v. Le Mesurier,- Brandon v. Curling, 4 
 East, 396. 410. 
 
 According to the above decisions, the capture of neutral vessels by the 
 cruisers of Great-Britain or her co-belligerents, is considered as a prohibited 
 risk, " because," says lord Ellenborough, " it is repugnant to the interest of 
 the state, and has a tendency to render the British operations by sea 
 ineffectual." Kellner v. Le Mesurier, 4 East, 402. This is certainly correct, 
 on the ground of state policy; but, another reason, founded on the broad 
 basis of the law of nations, is afforded by our own judge jfohnson, (one of the 
 judges of the supreme court of the. United States, and presiding judge of 
 the courts which compose the sixth federal circuit:) " a neutral," says he, 
 " who is captured for having violated his neutrality, is considered by the 
 belligerent as an enemy waging an individual war against his nation, and 
 is abandoned by his own government as such." Rose v. Himely, Bee's 
 Admiralty Reports, 322. It follows, from this principle, that all risks of 
 capture, by the armed vessels of the nation to which the insurer belongs, 
 may be properly classed \vitlnn the general prohibition against insuring
 
 TREATISE ON THE LAW OP WAR. 173 
 
 But, I think, that even though it be expressly mentioned and 
 designated in the policy, yet, when enemy's property or con- 
 traband goods are insured, the insurance is void, and it de- 
 pends on the will of the parties to fulfil or not, the contract 
 which they have entered into; but no judicial recovery can be 
 had thereon. 
 
 enemy's property. And, indeed, according to the formula which is used at 
 present by the courts of admiralty of Great-Britain, whatever may be, 
 in point of fact, the specific ground of condemnation of a neutral vessel or 
 cargo, no other reason is assigned in the decree, but that it belonged, at 
 the time of capture, to the enemies of that country. Home's Compend. 148. 
 
 T.
 
 174 TREATISE ON THE LAW OF WAR. 
 
 CHAPTER XXII. 
 
 Of enlisting Men in foreign countries, and, incidentally , of 
 Expatriation. 
 
 |" ENTER upon the discussion of a question which has been, 
 - and is still, the cause of much disturbance in many of the 
 kingdoms and states of Europe:. Whether it is lawful to enlist 
 men in the territory of a friendly sovereign? Let it not be 
 imagined, that I mean to contend, that it is lawful to entice 
 away soldiers, by bribes or solicitations, from the service of 
 another prince, in order to enlist them into our own. I know 
 too well, that those who promote desertion, are not less guilty, 
 and do not deserve a less punishment than the deserters them- 
 selves;* and, indeed, among some nations, that crime has even 
 been construed into high treason. The question which I am 
 about to investigate, is of a quite different nature. It is, whe- 
 ther a prince may, in the territory of a friendly sovereign, 
 enlist private individuals who are not soldiers, and make use 
 of them in war against his own enemies? It is certain, that 
 if a prince prohibits his subjects from transferring their 
 
 * The important question respecting the delivering up, or as it is called, 
 the extradition of deserters from one country to another, has been the sub- 
 ject of much controversy in America as well as in Europe, and is not yet at 
 rest. It has been but slightly touched upon by some of the writers on the law 
 of nations, and by others not at all. Vattel says nothing upon it. Hubner 
 lays it down as a general principle, that " a neutral sovereign may receive 
 in his dominions, and even among the number of his subjects, deserters 
 from either of the belligerent armies, unless he is obliged to deliver them 
 up by a special convention, called a cartel." 1 Hubn. De la Saisie, t^c. p. 39. 
 But Galiani distinguishes and contends, that if the army from which the 
 soldiers desert is on the neutral territory at the time when the destrtion 
 takes place, as for instance, if it has been allowed the right of passage, 
 the neutral sovereign is bound to deliver up those who have deserted their 
 colours within his dominions; otherwise, it will be considered as a violation 
 of the laws of hospitality. Gallant, De' doveri, &c. 1. 1. c. 8. 4. T.
 
 TREATISE ON THE LAW OF WAR. 175 
 
 allegiance and entering into the army or navy of another 
 sovereign, such sovereign cannot, with propriety, enlist them 
 into his service; but, where no such prohibition exists, (as is 
 the case in most of the countries of Europe), it is lawful, 
 in my opinion, for the subject to abandon his country, migrate 
 into another, and there serve his new sovereign in a military 
 capacity. 
 
 It is lawful, I repeat it, if there is no law that prohibits it, 
 for a subject to change his condition, and transfer his allegi- 
 ance from one sovereign to another. The writers on public 
 law are all of this opinion; nor does Grotius dissent from 
 them, but he adds, that expatriation is not lawful among the 
 Muscovites; and we know, that it is unlawful also among 
 the English and Chinese. We know likewise, that Louis XIV. 
 king of France,* declared by an edict of the 13th of August 
 1669, that those of his subjects who should, without the per- 
 mission of the government, emigrate from his dominions, 
 with the intention never to return, should be punished with 
 the forfeiture of life and goods. Before that period, it 
 was lawful to emigrate from France, and it is so wherever 
 the country is not a prison.t And if it is lawful for a subject 
 
 * This edict was made with a view to the Protestants. It was in the same 
 year that Louis the XIV. began to violate the edict of Nantz, by abolishing 
 the chainbres mi-parties, tribunals consisting of judges of both religions, 
 which that edict had established. Henault, Abrege de fHist. de Fr. sub anno 
 1669. He foresaw the immense emigration which its final repeal would 
 produce, and thus vainly endeavoured to prevent it. T. 
 
 j- By the first constitution of Pennsylvania, made on the 28th of September 
 1776, it was declared, (c. 1. $ 15.), " that all men have a natural inherent 
 right to emigrate from one state to another that will receive them." 
 1 Dalian's Laws of Penn. append, p. 54. The present constitution merely 
 provides, (art. 9 25), " That emigration from the state shall not be pro- 
 hibited." 3 Dallas's Laws of Penn. p. xxii. 
 
 The question, " whether it is lawful for a citizen to expatriate himself," 
 has been brought several times, and in various shapes, before the supreme 
 court of the United States. It was made a point, incidentally, in the case of 
 Talbot v. Jansen, mentioned above, p. 136. In that case, it appeared to be 
 the opinion of the court, that expatriation is lawful, provided it is effected at 
 such time, in such manner, and under such circumstances as not to endanger 
 the peace or safety of the United States. " The cause of removal," said 
 judge Patterson, " must be lawful, otherwise, the emigrant acts contrary to
 
 176 TREATISE ON THE LAW OF WAR. 
 
 to pass under the dominion of another prince, it must be so 
 likewise for him to seek the means of procuring an honest 
 
 his duty, and is justly charged with a crime. Can that emigration be legal 
 and justifiable, which commits or endangers the neutrality, peace or safety 
 of the nation of which the emigrant is a member?" 3 Dallas's Reports, 153 
 " That a man," said judge Iredell, " ought not to be a slave; that he should 
 not be confined against his will to a particular spot, because he happened 
 to draw his first breath upon it; that he should not be compelled to continue 
 in a society to which he is accidentally attached, when he can better his 
 situation elsewhere; much less where he must starve in one country, and 
 may live comfortably in another, are positions which I hold as strongly as 
 any man, and they are such is most nations of the world appear clearly to 
 recognize. The only difference of opinion is, as to the proper manner of ex- 
 ercising this right." Ibid. 162. Judge Gushing concurred in the general prin- 
 ciple, that expatriation is lawful, and approved of the doctrine laid down 
 on this subject by Heineccius, Elem. jfur. Nat. and Gent. 1. 2. c. 10. " But,'' 
 said he, " the act of expatriation should be bond Jide, and manifested at 
 least by the emigrant's actual removal, with his family and effects, into 
 another country." Ibid. 169. In the case then before the court, no such 
 removal had taken place. 
 
 In that of Murray v. The Charming Betsy, it was decided, that a citizen 
 of the United States who has bona fide expatriated himself, is to be con- 
 sidered as an alien for commercial purposes. One Shattuck, a natural born 
 citizen of the United States, had for many years, resided with his family, 
 and had been naturalized in the Danish island of St. Thomas. It was ob- 
 jected to him, that he had traded from that island with the French colonies, 
 in fraud of an act of congress, by which all trade was interdicted to the 
 citizens of the United States, with the dominions of France. But, the court 
 were of opinion, " that an American citizen may acquire, in a foreign 
 country, the commercial privileges attached to his domicile, and be ex- 
 empted from the operation of the general prohibitory laws of his native 
 country." The court did not, however, determine, whether a citizen of 
 the United States can divest himself absolutely of that character, otherwise 
 than in such manner as may be prescribed by our own laws, nor whether 
 his expatriation would be sufficient to rescue him from punishment, for 
 a crime committed against the United States. 2 Cranch's Reports, 120. 
 
 And lastly, in the case of M'llvaine v. Coxe's lessee, it was determined, 
 that a citizen of New- Jersey, who had gone over to the enemy during the 
 revolutionary war, and had, since that time, remained in England, enjoying 
 the privileges of a British subject, had not ceased to be a citizen of Nevs- 
 *Jersey, and was entitled to claim lands by descent, in that state, because 
 several laws had been made by its legislature, some before and others after 
 his emigration, by which emigrants of that description were declared to be 
 fugitive citizens and traitors, punishable as such, but were not considered as 
 aliens. Cranch's Reports, vol. ii. p. 280. vol. iv. p. 209. T,
 
 TREATISE ON THE LAW OF WAR. 177 
 
 livelihood, and why may he not do it by entering into the 
 land or sea service? In the United Provinces there is certainly 
 no law to prevent it, and many Dutchmen, formerly, as well 
 as within my own recollection, have served other sovereigns 
 by sea as well as by land. 
 
 When I speak of other sovereigns, I only mean those who 
 are in amity with us; for, it is not lawful to enter into the 
 military service of an enemy, by land or sea, and the states- 
 general have prohibited it by several edicts. It may, indeed, 
 be said, that several of the edicts which prohibit our citizens 
 entering into the service, of any foreign prince or state, as 
 they speak in general terms, must be understood in the same 
 manner, and not be exclusively applied to the service of an 
 enemy. But, if those edicts are attentively examined, it will 
 be found, that they are either occasional statutes, made in 
 time of war, when the states-general were in want of men, or 
 that they are expressly directed against those who then were 
 or might afterwards have gone into the enemy's service, or 
 against deserters from our own army or navy, who had enlisted 
 themselves abroad. Once, a Dutch vessel was captured by a 
 French privateer, having eighty men on board, all of them 
 (except six Frenchmen) natives of Holland or Zealand; the 
 states-general, justly exasperated, issued an edict, on the 28th 
 of July 1674, by which it was decreed, that if any of our 
 subjects should enter into the naval service of the enemy, 
 they should be drowned. A similar edict was made on the 
 4th of April 1676. But those edicts only relate to such as 
 serve the enemies of our country, and cannot be extended 
 to those who enter into the service of a power in friendship 
 or in alliance with us. 
 
 If, therefore, our subjects, whose assistance we do not want 
 in time of war, and who are not prevented by any law from 
 transferring their allegiance, may lawfully hire out their 
 military services to a friendly prince, why may not also that 
 friendly prince enlist soldiers in the territory of a friendly 
 nation? Where it is lawful to let out to hire, it is lawful also 
 to hire, and why should it not be equally so to contract for 
 the hiring of soldiers in the territory of a friend, as to mak? 
 
 tz
 
 178 TREATISE ON THE LAW OF WAR. 
 
 any other contract, and carry on any kind of trade. It will be 
 objected, perhaps, that he who enlists the soldiers, may make 
 xise of them against a friend of the sovereign in whose country 
 they have been hired, and perhaps also, against that sovereign 
 himself; but these objections, in my opinion, are not of suffi- 
 cient force. 
 
 As to the first supposition, that the soldiers may be em^ 
 ployed to fight against a friend of their own sovereign, it 
 must be observed, that neutrals are bound in war to consider 
 both the belligerents as equally in the right. Such is the 
 doctrine generally admitted as to the purchase and sale of 
 warlike implements, which, indeed, we may not lawfully 
 carry, but we may, in our own country, lawfully sell to either 
 or both the belligerent parties, although we well know, that 
 they intend to make use of them in war against each other. 
 
 To the second head of the objection, that the soldiers 
 thus hired may possibly be employed against their own 
 sovereign, I answer, that we are only to attend to the state 
 of our country at the time, and ought not to look so far into 
 futurity. Nor do I see any difference between enlisting men, 
 and purchasing gun-powder, ammunition, arms and warlike 
 stores, which may certainly be done by a friendly sovereign in 
 our country, and which he may also use afterwards against 
 us. I repeat it, the actual relations of our country are alone 
 to be considered; otherwise, there must be an end to amity, 
 friendship, and even alliances between princes. 
 
 I am of opinion, therefore, that the same law which obtains 
 as to the purchase of implements of war, must apply in like 
 manner to the enlistment of soldiers in the territory of a 
 friendly nation, unless it should be expressly stipulated other- 
 wise between the two sovereigns. Thus, in the treaty between 
 the Romans and Antiochus the Great, king of Syria, the latter 
 bound himself not to enlist soldiers within the limits of the 
 Roman empire.* That treaty was not equal, otherwise he might 
 lawfully have enlisted soldiers in the Roman dominions, nor 
 could the senate have prohibited it without doing him an in- 
 
 * Liv. 1. 38. Polyb. Excerpt. Legal, c. 35. n. 4.
 
 TREATISE ON THE LAW OF WAR. 179 
 
 Jury; for, while by the same treaty it was stipulated, on re- 
 ciprocal terms, that neither of the contracting parties should 
 supply the enemy of the other with provisions, to Antiochus 
 alone it was forbidden to do that which otherwise may law- 
 fully be done by every sovereign. 
 
 In the United Provinces, however, it appears to have been 
 and is still prohibited by law, to enlist soldiers, without the 
 permission of the states-general. There is an ancient edict 
 upon this subject, of the 8th of January 1529. A similar 
 edict was made on the 1st of August 1612, when the 
 Danes, Swedes and Muscovites had made enlistments bn 
 the Dutch territory. Those nations were prohibited, by name, 
 from doing the like, without having previously obtained the 
 permission of the states-general in writing, and they were 
 strictly forbidden to seduce the Dutch soldiers from the 
 national service, under the penalty of death or some other 
 discretionary punishment. There are a variety of subsequent 
 edicts,* by which it is enacted, " -.hat if any one shall seduce 
 soldiers within the territory or jurisdiction of the United 
 Netherlands, without the permission, in writing, of the states- 
 general or their counsellors, the offender shall be liable, not to 
 a discretionary penalty only, but to the punishment of death, 
 without remission or mitigation."! As those edicts agree en- 
 
 * Edicts of the states-general, of the 16th of December 1622 3d of 
 March 1627 30th of March 1646 21st of July 1648 20th of January 
 1652, and 18th of March 1653 of the states of Holland, of the 27th o 
 March 1652, and 16th of March 1656. 
 
 f By the act of qpngress of the 5th of June 1794, mentioned in one of the 
 preceding notes, page 129, it is provided ( 2.) " that if any person shall, 
 within the territory or jurisdiction of the United States, enlist or enter him- 
 self, or hire or retain another person to enlist or enter himself, or to go 
 beyond the limits or jurisdiction of the United States, with intent to be 
 enlisted or entered in the service of any foreign prince or state as a soldier, 
 or as a marine or seamen on board of any vessel of war, letter of marque or 
 privateer; every person so offending, shall be deemed guilty of a high 
 misdemeanor, and be fined not exceeding one thousand dollars, and impri- 
 soned not exceeding three years. Provided, that this shall not be construed 
 to extend to any subject or citizen of a foreign prince or state, who shall 
 transiently be within the United States, and shall, on board of any vessel of 
 war, letter of marque or privateer, whirl), at. the time of its arrival within
 
 180 TREATISE ON THE LAW OF WAR. 
 
 tirely with my opinion, I submit them to the reader, without 
 observation or comment. 
 
 It may not be improper to notice here, a difference which 
 took place in the year 166, between the states-general, and 
 the governor-general of the Spanish Netherlands* The states 
 complained to him, that the bishop of Munster, with whom 
 they were at war, had enlisted soldiers in the Spanish terri- 
 tories in the Low Countries. The governor answered, that he 
 had not authorised him so to do, but that if he had, there was 
 nothing to prevent him, as Spain was neutral in the war, and 
 that the states-general might exercise the same right, if they 
 pleased.* But, whether such a thing is lawful, without the 
 consent of the sovereign, and whether the sovereign may, 
 with propriety, refuse his permission, when applied to for 
 it, is the very subject of our inquiry. Whether or not, the 
 bishop of Munster had a right to enlist soldiers in the Spanish 
 Netherlands, without the permission of the governor-general, 
 the reader must determine for himself from what has been 
 above stated. 
 
 the United States, was fitted and equipped as such, enlist or enter himself, 
 or hire or retain another subject or citizen of the same foreign prince or 
 state, who is transiently within the United States, to enlist or enter himself 
 to serve such prince or state on board such vessel of war, letter of marque 
 or privateer, if the United States shall then be at peace with such prince or 
 slate." 3 Laws U. S. 88. T. 
 
 * AHz. I. 46.
 
 TREATISE ON THE LAW OF WAR. 181 
 
 CHAPTER XXIII. 
 
 Of the right of the several provinces of the United Nether- 
 lands to declare and make war. 
 
 JN this chapter our author discusses a constitutional question, 
 relating exclusively to his own country, under its former 
 government. He inquires, "whether the united provinces of 
 the Netherlands had separately the right of declaring and 
 making war. From the tenor of one of the articles of the Con- 
 federation of Utrecht, (the federal constitution of the Dutch 
 union), it would seem that they had not that power; for, it 
 is there expressly stipulated, " that no war shall be made 
 without the advice and consent of all the provinces;" but 
 our author contends and argues at great length, that every 
 power which by that treaty was not expressly granted, was 
 retained by the several provinces; that before it was entered 
 into, they separately had the right of declaring and making 
 war, and had not explicitly parted with it. That the above- 
 mentioned clause in their confederation ii>as only applicable to 
 national wars, entered into for the redress of national injuries; 
 but that if a single province should receive an injury from a 
 foreign state, it might lawfully avenge it by a separate war. 
 
 As we do not think that this chapter can interest our readers 
 :n any point of view, -we have omitted it in this translation, 
 and believe it sufficient to have given this general, outline of its 
 contents. T.
 
 182 TREATISE ON THE LAW OF WAR. 
 
 CHAPTER XXIV, 
 
 Of Reprisals. 
 
 REPRISALS* wfere a thing entirely unknown to the an- 
 cient Romans, and cannot be expressed by an adequate 
 word in their language. Some writers have used the words 
 pignoratio, clarigatio, but neither of them renders with pre- 
 cision what we understand by reprisals. Nor had the Romans 
 occasion for such a word, who paid the most sacred regard to 
 the property of their friends, and who would have disdained 
 to commit hostilities on those for whom they professed friend- 
 ship, and to subject their good friends to indiscriminate plun- 
 der, by sea and land. 
 
 As there is no instance of such wickedness in the history 
 of that magnanimous people, neither do their laws exhibit 
 
 * The word reprisal, according to its Etymology, is synonimous with 
 recaption or retaking, and the thing which is meant hy it, is analogous in 
 name as well as in substance, to the common law process of luitfiernanti 
 \vith this difference, that the one is a legal retaliation, exercised only 
 on the goods and chattels of the party who has been guilty of the first 
 tortious taking; the other is exercised on the property of all the indi- 
 viduals of the same nation. " For," says Valin, " it is a principle established 
 by the universal law of nations, that all the subjects of a state are bound 
 in soliJum, to make reparation for the injuries done to foreigners by the 
 state itself, or any of its members." Traits des Prises, p. 321. 
 
 Reprisals are either general or special. They are general, when a sove- 
 reign, who has, or thinks that he has received an injury from another prince, 
 issues orders to his military officers, and delivers commissions to his sub- 
 jects to take the persons and property of the subjects of the other nation, 
 wherever the same may be found. It is, at present, the first step which is 
 generally taken at the commencement of a public war, and is considered as 
 equivalent to a declaration of it. 
 
 Special reprisals are granted, in time of peace, to individuals who have 
 suffered an injury from the subjects of another nation, and these alone are 
 treated of in the present chapter. T.
 
 TREATISE ON THE LAW OF WAR. 
 
 .the least trace of it. How then shall we explain the stipu- 
 lation which is contained in two different treaties* between 
 Spain and the United Provinces, " that no letters of marquef 
 or reprisal shall be granted, but with full knowledge of the 
 cause, against those persons only on whom they may lawfully 
 be issued by the Imperial laws and constitutions, and con- 
 forming to the regulations which those laws prescribe?" For, in 
 the laws of jfiistinian, which are always understood by the 
 general description of Imperial laws in countries that are not 
 governed by an emperor, there is not a single word about 
 reprisals, which, as I have already observed, were entirely 
 unknown to the Romans. In order to rescue from the impu- 
 tation of ignorance, the very learned men who drew up those 
 treaties, I must suppose, that by Imperial laws, they meant 
 the law of nations, which, as well as the law of Justinian, is 
 denominated throughout Europe, the common law,\ so that 
 they must have considered the words common and Imperial 
 law, as convertible terms. I cannot think of any other way of 
 accounting for that mistake. 
 
 According to the law of nations, then, reprisals are not to 
 be granted but with a full knowledge of the cause, nor for 
 
 * Truce of the 9th of April 1609, art. 11. Treaty of Minister, of the 23d 
 of January 1648, art. 22. 
 
 f Letter of marque and reprisal is the old technical expression for what 
 we now call a privateer's commission- It still preserves, in law, the same 
 signification, although it is common, at present, to apply the denomination 
 letter of marque, by way of distinction, to a vessel fitted out for war and 
 merchandize, and armed merely for defence. T. 
 
 \ See note f above, p. 53. T. 
 
 In order that letters of reprisal may not be granted, without full know- 
 ledge of the cause, or without sufficient reasons, various wise precautions 
 were taken by Louis XIV. in his Ordonnance de la Marine, of August 1681. 
 By that ordinance, the party injiwed, is obliged, as soon as possible afte,r 
 the injury suffered, to cause the facts to be ascertained, and the damage 
 to be estimated by a court of admiralty; after which, and not before, he 
 may petition the crown for letters of reprisal; these are not issued until 
 after a proper and fruitless application to the sovereign of the offending 
 party, nor then, without sufficient security being given by the petitioner; and 
 notwithstanding all that, if at a future day, the statement contained in 
 the petition should be found not to be true, the petitioner is to be con 
 clemned to the payment of full damages and interest to the party whose ptc
 
 184 TREATISE ON THE LAW OF WAR. 
 
 such causes or against such persons as the law exempts from 
 them, nor then without conforming to the rules and order of 
 proceeding which usage has established. The first of these 
 rules, is, that letters of reprisal are not to be granted, unless 
 there has been a clear and open denial of justice. Hence, by 
 the treaties above mentioned,* it was agreed between us and 
 Spain, " that if any injury should be done not warranted by 
 the orders of his majesty on the one hand, or of the states- 
 general on the other, the peace should not be thereby con- 
 sidered as ipso facto broken, but that it should be lawful, in 
 case of an open dental of justice, to seek redress according to 
 custom, by issuing letters of marque and reprisal." Such is 
 the common law, which has long been and still is used among 
 nations, when justice is denied by the sovereign, and it is con- 
 formable to the opinion of all who have written on this subject. 
 There is never any occasion for reprisals, except in time of 
 peace, though Mornac\ is of opinion, that they cannot be 
 granted, except where there is actual war. But he is certainly 
 mistaken. 
 
 Reprisals, therefore, are a means of redress, to be used 
 only in case of a denial of justice. They are an authorization, 
 granted by a sovereign, to take the persons and goods of 
 the subjects of another prince; in order to obtain satisfaction 
 for an injury:}: committed upon his own subjects,^ for which 
 
 perty shall have been seized by virtue of the letters of reprisal, and more- 
 over, to restore four times the amount which he shall have received. For 
 the sake of greater regularity, letters of reprisal are, in all cases, to 
 express the sum for which they are given, and to specify a time to which 
 their exercise is limited, and after the expiration of which, they become 
 void. Ord. de la Mar. I. 3. tit. 10. Des Represailles. T, 
 
 * Art. 31, of the truce, and 60 of the treaty above mentioned. 
 
 f Ad auth. sed omnino, cod. ne uxor pro marito. 
 
 \ Valin is of opinion, that letters of reprisal may be granted not only for 
 reparation of an injury done by means of actual force and violence, but also 
 for a debt justly due by a subject of a foreign power, for which the creditor 
 has not been able to obtain justice in a regular course of legal proceedings. 
 Trait* des Prises, p. 321. T. 
 
 Mr. Valin is also of opinion, that not only a subject, by birth or 
 naturalization, may apply for and obtain letters of reprisal, but also a
 
 TREATISE ON THE LAW OF WAR. 185 
 
 justice has been denied by the sovereign of the offending 
 party. Thus, an injury committed by force and violence, and 
 not repressed by the competent magistrate, is redressed by the 
 same means and in the same manner. 
 
 In order that no one should rashly complain of a denial of 
 justice, special provisions have been made by treaties between 
 different nations. By the 24th article of the treaty of peace 
 between England and the states-general of the 5th of April 
 1654, reprisals are not to take place, except sub modo; for, it 
 is there stipulated, "that letters of reprisal shall not be granted, 
 unless the prince, whose subject shall conceive himself to have 
 been injured, shall first lay his complaint before the sovereign 
 whose subject is supposed to have committed the tortious act, 
 and unless that sovereign shall not cause justice to be rendered 
 to him within three months after his application. This sti- 
 pulation was renewed by the 31st article of the treaty of peace 
 between the same nations, of the 31st of July 1667. 
 
 There are many other instances of treaties between nations, 
 in which this subject has been attended to. In the treaty of 
 commerce between the king of France and the states-general, 
 of the 27th of April 1669, article 17, after stipulating, that re- 
 prisals shall not be resorted to, unless justice shall have been 
 first denied, it is immediately added, *' that justice shall not be 
 considered as having been denied, unless the petition by which 
 letters of reprisal are applied for shall have been first communi- 
 cated to the ambassador of the sovereign whose subjects are 
 complained of, that he may inquire into the truth of the com- 
 plaint, and if he finds it true, that he may cause justice to be 
 done to the injured party within four months.* Thus, without 
 
 foreigner^ dotniciliated in the country (regnicola;) the state being bound 
 also to protect him, and to consider the injury done to him as an affront to 
 the majesty of the sovereign. Ibid. p. 225. T. 
 
 * By the treaty of Ryswick, art. 9, and the treaty of Utrecht, art. 16, (the 
 latter concluded between England and France on the llth of April 1713), it 
 is stipulated, " that letters of reprisal shall not thereafter be granted by 
 either of the high contracting parties, to the prejudice or detriment of the 
 subjects of the other, except only in such case wherein justice is denied or 
 delayed; which denial or delay of justice shall not be regarded as verified, 
 unless the petitions of the person who desires the said letters of reprisal 
 
 f. 2 A
 
 186 TREATISE ON THE LAW OF WAR. 
 
 any violation of the existing peace, the sovereign against whose 
 subjects a complaint is made, sits in judgment upon it, and 
 pronounces his own sentence. It is certainly useful to restrict 
 the use of reprisals by similar treaties; for, it would be unjust 
 to take it away altogether between the subjects of independent 
 nations, 
 
 It was, however, stipulated, by the 9th article of the treaty 
 between the emperor of Morocco and the states-general, of the 
 24th of September 1610, " that neither of the two sovereigns 
 should issue letters of reprisal, but that they should administer 
 justice to each other's subjects." But this is an idle stipulation; 
 for what is to be done, if justice is not administered? The in- 
 jured sovereign will then have recourse to reprisals, and will 
 say that he is compelled to it by the exigency of the case. If 
 it be agreed between princes, that justice shall be mutually ad- 
 ministered to the subjects of each other, that stipulation should 
 be performed with good faith; but still, it is true, that the ob- 
 ligation to render justice to foreigners, exists independent of 
 treaties, and whether there is or not, a special convention to 
 that effect, reprisals are not to be resorted to, unless justice is 
 previously denied. 
 
 It might, perhaps, be supposed, that reprisals are entirely 
 taken away by the 16th article of the abovementioned treaty 
 of the 5th of April 1654,* because it is there agreed, that if 
 
 be communicated to the minister residing there, on the part of the prince 
 against whose subjects they are requested to be granted; that within the 
 space of four months or sooner, if it be possible, he may manifest the con- 
 trary, or procure the satisfaction which may be justly due. And if there 
 should not be on the spot, any minister or ambassador from that sovereign, 
 no letters of reprisal shall be issued until after the expiration of the four 
 months, reckoning from the day on which the petition shall have been pre- 
 sented to the prince against whose subjects the letters are applied for, or 
 to his privy council." 
 
 The same stipulation is contained in substance, in the 3d article of the 
 treaty of commerce concluded between Great-Britain and France, on the same 
 day with the treaty of Utrecht, and in all the treaties made at Utrecht at the 
 same time between the other powers; " and thus," says M. Valin, " it has 
 become a part of the common lata of nations." Traitt des Prises, p. 331. II 
 is also contained (except the last clause) in the treaty of commerce be- 
 tween France and Great- Britain^ of the 26th of September 1786, art. 3. T 
 
 Above, p. 185.
 
 TREATISE ON THE LAW OF WAR. 187 
 
 any one shall commit an infraction of the peace subsisting be- 
 tween the two powers, the infractor shall be punished, and 
 judgment shall be given within a certain time, which is limited 
 by the same article. But such an inference would not be cor- 
 rect, for, what if the criminal should not be punished, or if 
 what he had forcibly taken away should not be restored? Re- 
 prisals, in such a case, would still have to be resorted to; and 
 that such was the intention of the parties, appears by the 24th 
 article of the same treaty, in which, as I have already shewn, 
 there is a mode of proceeding pointed out for the granting of 
 letters of reprisal. Since reprisals are in use among nations,- 
 these, and war, which follows close at their heels,* are the only 
 remedies of independent sovereigns, for repelling unjust ag- 
 gressions, as they cannot submit themselves to the judgment 
 of a foreign prince, which they would consider as a shameful 
 prostitution of their own majesty. 
 
 It seems that the power of granting letters of reprisal be- 
 longs to the sovereign alone; for, it is beyond the authority of 
 subordinate magistrates. It is so observed every where, even in 
 France, where formerly letters of reprisal were granted by the 
 parliaments.! When the towns of the Netherlands waged se- 
 parate wars, they, in like manner, granted letters of reprisal. 
 There exists an ancient law of the city of Amsterdam, by 
 which it was provided, that if any injury should be done to one 
 of its citizens out of its territory and jurisdiction, either by 
 main force and violence, or by an unjust judgment, (which 
 last expression, I beg the reader will particularly observe), the 
 
 * Les represailles sans annoncer precisfment la guerre, y conduisent naturel- 
 lement, & en sont assez souvent le prelude. Reprisals do not, it is true, precisely 
 indicate war, but they naturally lead to that state of things, and are often 
 enough a prelude to it. Valin, Traite des Prises, p. 321. T. 
 
 f Cetui droit est de puissance absolve, qui ne se communique ni delegue aux 
 gouverneurs des provinces, villes Cf cits, amiraux, vice-amiraux on autres 
 magistrals. The right of granting letters of reprisal, is a right summi 
 imperil, and cannot be communicated nor delegated to the governors of 
 provinces, cities or towns, nor to the admirals, vice-admirals or other 
 magistrates. Le Guidon, c. 10, art. 10. The parliaments of France, however, 
 exercised it until the year 1485, when Charles VIII. by a special or- 
 dinance, reserved it exclusively to himself. Valin, ibid. p. 329. T.
 
 188 TREATISE ON THE LAW OF WAR. 
 
 aggrieved party should prefer his complaint to the magistrate 
 of Amsterdam^ who should write on the subject, to the magis- 
 tracy of the place where the injury was committed, and if after 
 receiving an answer, he should still think that his fellow-citizen 
 had been injured and was entitled to redress, he should, by 
 his judicial authority^ indemnify the injured party, by issuing 
 process against the persons or goods of the subjects of the 
 prince whose subjects had done the injury, if they should be 
 found within the territory of Amsterdam.* 
 
 I have observed, that this law of the city of Amsterdam, 
 says, or by an unjust judgment. It is not enough that the pro- 
 perty of our subjects or citizens be taken by virtue of a judg- 
 ment, it must be also an unjust one. Of this, however, the 
 magistrate of Amsterdam alone was to judge; for, such things 
 are seldom trusted to the judgment of others. f The treaties 
 between sovereigns merely say, that letters of reprisal are not 
 to be granted, unless for a denial of justice; but an unjust 
 sentence will easily be construed into such a denial, and indeed 
 sovereigns will qualify as unjust, every sentence that is not 
 agreeable to them4 
 
 * Those who have obtained letters of reprisal, may, by virtue thereof, 
 seize within their own country, the goods and effects of the subjects of the 
 power, whose subjects have done them the injury; but it must be done 
 tid juris, by some judicial process, and not manuforti, by private authority, 
 unless there should be danger of the property being carried out of the 
 country, before application could be made to a competent magistrate. 
 Fix/in, ibid. p. 333. T. 
 
 f See above, p. 72. 
 
 J In the letter of the duke of New-Castle, to Mons. Michell, on the subject 
 of the celebrated controversy with the king of Prustia respecting the Silesia 
 loan, are found the sentiments of the English jurists upon this subject. " The 
 law of nations," say they, " founded upon justice, equity, convenience and the 
 reason of the thing, and confirmed by long usage, does not allow of reprisals, 
 except in case of violent injuries, directed or supported by the state, and jus- 
 tice absolutely denied in re tninime dubia, by all the tribunals, and afterwards 
 by the prince Where the judges are left free, and give sentence according 
 to their conscience, though it should be erroneous, that would be no ground 
 for reprisals. Upon doubtful questions, different men think and judge dif- 
 ferently; and all a friend can desire, is, that justice should be as impartially 
 administered to him, as it is to the subjects of the prince in whose courts 
 the matter is tried." 1 Magens an Intttr. 491. 
 
 These
 
 TREATISE ON THE LAW OF WAR. 189 
 
 I have seen many instances in our own country, of letters 
 of reprisal granted by cities and towns. They are vestiges of 
 the ancient liberty of the Hollanders, when the several mem- 
 bers of the states were more independent than the states 
 themselves; for, the provincial states, ever since the confe- 
 deration of Utrecht, although they are severally independent, 
 cannot issue letters of reprisal generally and in every case. 
 Indeed, it might be said, that they cannot issue them in any 
 case, because they are a species of war, and by the 17th article 
 of the said confederation, it is expressly declared to be unlaw- 
 ful for the several provinces to give any cause of war to foreign 
 princes. 
 
 trip The remainder of this chapter treats only of the right 
 sf the several provinces of the United Netherlands to issue 
 letters of reprisal; our author thinks that they may do it in their 
 own cause, for an injury done to themselves in their several 
 capacities, but not for an injury done to the union. We have 
 omitted this discussion, as uninteresting to our readers. 
 
 . 
 
 These principles are undoubtedly correct, on the supposition, that law and 
 justice are every where impartially administered, according to the old 
 established rules of the law and usage of nations; but where certain courts 
 (as is at present the case in almost every country of Europe) are known to 
 be mere political establishments, and are, properly speaking, ministerial 
 boards, obliged to conform to the decrees and orders of the sovereign, 
 and guided in their decisions by considerations of state policy, varying and 
 fluctuating with every change in the aspect of national affairs, such im- 
 partiality from them can hardly be presumed, and tribunals so constituted, 
 ought not to be held up as a shield to ward off the responsibility of the 
 sovereign. In the case just cited, the king of Prussia was not satisfied with 
 the plausible arguments of the English civilians, but demanded and obtained 
 of the British court 20,000 sterling, as an indemnity for Prussian vessels 
 and cargoes illegally condemned. Examination of the British doctrine, &c. 
 p. 99. And there have been instances of commissioners being appointed, in 
 pursuance of treaties between neutral and belligerent powers, to reform the 
 unjust judgments of prize tribunals. Treaty between the United States and 
 Great- Britain, of the 19th of November 1794, art. 7 between the United 
 States and Spain, of the 27th of October 1795, art. 21. 2 Laivs U. S. 473, 534. 
 
 T.
 
 190 TREATISE ON THE LAW OF WAR 
 
 CHAPTER XXV. 
 
 Miscellaneous Maxims and Observations. 
 
 I. TT is not lawful to take or retain possession of a neutral 
 fortress, for fear the enemy should occupy it. 
 
 In the year 1 620, the states-general, who had promised to 
 evacuate the' fortress of Lieroort, in East Friesland, did not do 
 it, but kept possession of it, " lest," said they, " the enemy 
 should occupy it, and make use of it against themselves." They 
 were clearly in the wrong, and acted in this against the opinion 
 of prince Maurice of Orange, who was no friend to the Fries- 
 landers, and was warmly attached to the cause of the states. 
 Their conduct was even blamed by their own counsellors, in 
 1621, and several times afterwards, as Aitzema relates.* 
 
 There are men, however, who call themselves lawyers, 
 and who approve of similar injuries, among whom I wish 
 I had not to name the celebrated Grotius.] I can tolerate such 
 an opinion in such men as Zouch\ and Buddceus; the former 
 
 * Aitz. 1. 2. 
 
 f Jfinc cotligore est, quoniodo ti, qui helium pium gerit, liceat locum occupart, 
 r/ui situs sit in solo pacato: nimirum si non imaginarium, sed certum sit 
 periculum, ne hostis cum locum invadat, 3* inde incparabilia damna det. 
 Hence, it may be inferred, how it is lawful for one who is engaged in a 
 lawful war, to occupy a place situated on neutral territory; particularly if 
 there is a certain and not an imaginary danger of the enemy's occupying it, 
 and from thence doing considerable injury to his adversary. Grot. De J. B. 
 ac P. 1. 2. c. 2- $ 10. Gronovhts, in a note upon this passage in Grotius, 
 considers our author's opinion upon this subject as unreasonable. Dissentit, 
 nbsque ratione, amplissimus Bynkershoek. Whether his dissent was entirely 
 absque ratione, the awful events which have taken place in Europe within 
 these few years, have surely enabled the reader to decide. '/'. 
 
 \ De Jure Fee", p. 2. 5. 
 
 Philosoph. Pract. c. 5. 6. fl ult.
 
 TREATISE ON THE LAW OF WAR. 191 
 
 of whom, however, borrows it from Grottus. They support it 
 by adducing instances of similar rapine, as if example, in such 
 cases, were sufficient; while it is only solving a problem by 
 another problem, litem quod lite resolvit. Nor is what they 
 say about embargoes of ships at all analogous to the present 
 case; for, ships that are found in the dominions of another 
 sovereign, are in a manner subject to him, and those em- 
 bargoes are laid by virtue of a custom universally received 
 among sovereigns. But, it never has been admitted as a custom, 
 that the dominions, towns or forts of a friendly nation, may 
 otherwise than tortiously be invaded or retained. 
 
 II. Conquered countries, like lands purchased ', pass CUM 
 
 ONERE. 
 
 The king of Spain had hypothecated a certain territory for 
 a sum of money which he had borrowed of one who was in 
 friendship with him and the states-general. The states con- 
 quered that territory in the course of a war. The counsel- 
 lors of Holland were of opinion, that the pledge was extinct.* 
 But they were mistaken, for the states had only conquered 
 what belonged to the king of Spain, that is to say, the right of 
 empire and dominion, as he had possessed it. And as he held 
 it subject to that hypothecation, it could not pass over to the 
 states in any other manner. If the states, instead of conquer- 
 ing, had purchased from the king a part of that territory, the 
 creditor would still have been entitled to his whole pledge. 
 He would have preserved his rights against the king of Spain^ 
 the vendor, who had bound himself for the debt, and against 
 the states-general, who had purchased the land hypothecated 
 for its payment, because property, when sold, passes with all 
 its charges, which remain entire for the benefit of the creditor. 
 But now the Dutch have taken the territory, and consider it 
 as confiscated to them. And so it is, as far as it belonged to 
 the king of Spain, but that does not include the interest which 
 the neutral creditor had in it. If the hypothecated debt, in- 
 deed, had belonged to an enemy, it might also have been justly 
 confiscated by the law of war. 
 
 * Consil. Belg-. vol. 3. Consll 2.
 
 192 TREATISE ON THE LAW OF WAR. 
 
 III. Property captured and afterrvards ransomed or given 
 up by the enemy, is not thereby liberated from the claims of the 
 insurer or lender at maritime risk.* 
 
 It has been questioned, whether property, particularly ships 
 and merchandize, which after being captured, are ransomed 
 or given up by the enemy, to their former owner, are thereby 
 exonerated from the prior claims of the insurers or of those 
 who had lent money thereon at maritime risk? Some lawyers 
 have been of opinion,! that if a ship has been ransomed, or if 
 the captor has given her up to her former owner, she lias, 
 as it were, ceased to be entire, and she is to be considered 
 as a new ship, and that a total loss has taken place with respect 
 to the insurers and lenders at maritime risk. 
 
 But this appears to me, neither just nor equitable, because 
 the insurer is only responsible for the damage suffered, and 
 the money lender only liable to a loss on the amount of his 
 loan in proportion to that damage. The one, therefore, is not 
 bound to pay, nor the other to lose more, than the amount of 
 the salvage or ransom. Philip the II. in his ordinance upon 
 insurance, of the 2Oth of January 15504 section 27, prohibits 
 the ransoming of vessels from pirates, and therefore permits 
 it from real enemies, with a view, no doubt, to shew, that the 
 insurers are bound for the amount of the salvage, but no 
 farther; otherwise, there was no reason for speaking of ransom 
 in an edict which exclusively relates to the subject of in- 
 surance. Nay, the last clause of the policies in common use 
 among the merchants sufficiently shews, that when a ship is 
 ransomed, the interest which the insurers have therein, is not 
 less redeemed than the property of the owner himself. I am, 
 therefore, of opinion, that the loss or damage which the in- 
 surers are bound to pay, and which the lenders at maritime 
 risk are obliged to lose, is the precise amount of the money 
 
 * The civil law denominates maritime loans or loans at maritime rist t 
 Cfcenus nanticiimj, those contracts which at common law are called 
 hittomry and respondentia. '/' 
 
 f Consil. Belg. vol. 1. Consil. 52. vol. 3. Consil. 248. 
 
 \ See note J p. 131. in which this ordinance is mentioned, by mistake, a* 
 of the 26th, instead of the 20th ef January. T.
 
 TREATISE ON THE LAW OF WAR. 193 
 
 axpencled in the salvage or redemption of the property. I 
 grant, however, that if a ship has been captured, carried into 
 port, and there condemned and sold, and afterwards is pur- 
 chased by her first owners, in that case the loss will be tptal to 
 the underwriters and money lenders; and the ship thus pur- 
 chased, will be considered as zL new ship in the hands of the 
 first owner. There is an opinion to this effect in the Consilia 
 Belgica.* 
 
 IV. Orders, in war, are to be strictly obeyed. 
 
 The states-general had ordered, that their troops, who 
 held the citadel of Reyd, in the country of Juliers, should 
 obey the orders of Florence van den Boetseler, who was lord 
 of the place. Boetseler exhibited that order to the commandant 
 of the fort, and required him to deliver it up to the Spaniards, 
 who were approaching, and the commandant accordingly sur- 
 rendered it up on the 30th of August 1621.f But Maurice, 
 prince of Orange, was so angry with him on that account, that 
 he punished him with death on the 14th of September fol- 
 lowing, pretending that the order was only applicable to civil 
 and not to military matters. I doubt whether he did right; 
 for, as the citadel did not belong to the states-general, that 
 order can have meant nothing, but that the rights of the lord 
 of the territory, although he had admitted a garrison within 
 it, were to be kept inviolate, and that the soldiers should not 
 defend the citadel any longer than the lord should think 
 proper, lest he should be involved in the same difficulty with 
 the Spaniards, in which the count of East Friesland found 
 himself, when the states refused to evacuate fort Lieroort, as 
 I have mentioned at the beginning of this chapter. 
 
 V. It is not lawful to repair fortifications during a truce, or 
 pending a capitulation. 
 
 Albericus Gentilis\. is of opinion, that while a treaty is on 
 foot concerning the surrender of a town or place, it is lawful 
 to finish or repair the fortifications thereof. Zouch, after him, 
 adopts the same opinion. But Ferdinand thought otherwise, 
 
 * Vol. 1. Consil. 11. f Aitz. 1. 1. 
 
 t De Jure Belli, 1. 2 c. 18. 
 $ De Jure Fee. p. 2. 10. Q. 10, 
 [2 B
 
 194 TREATISE ON THE LAW OF WAR. 
 
 who, after the surrender of Reggio, precipitated the French 
 on that very account from the top of the walls;* and when the 
 Spaniards, who, in 1622, were besieging Bergen, during a 
 truce which had been granted to them to bury their dead, 
 completed their works, and from thence reconnoitered the for- 
 tifications of the town, the Dutch complained that the truce 
 had been broken, and that the usage of war had been violated. f 
 It was, however, in 1664, agreed at Bylerschans, that the truce 
 should not prevent the erecting and perfecting of fortifications 
 on both sides.:}: But it is best, when a truce is made, to suspend 
 every warlike operation, for, such appears to be the intent and 
 meaning of a truce; otherwise, it would be very difficult to de- 
 fine it. 
 
 VI. Governments are not bound to repair every loss that is 
 occasioned by the calamities of war. 
 
 When the bishop of Munster, in 1665 and 1666, had taken 
 and laid waste certain places in Over-Yssel, and the French, 
 who had come to the assistance of our countrymen, had not 
 behaved with much more moderation, the people of Over- 
 Tssel applied to the states-general to be indemnified for the da- 
 mage which they had suffered, but the counsellors having been 
 consulted on that subject, gave it as their opinion, that no in- 
 demnity ought to be given, except for the deficiency suffered 
 in their taxes and contributions, in proportion to the time 
 during which the places had been occupied by the enemy. 
 As to the remainder, it was to be imputed to fate, and was 
 one of those calamities of war which must be supported by 
 those on whom they happen to fall. 
 
 Afterwards, however, the same counsellors, having some- 
 what changed their opinion, thought that an indemnity ought 
 to be allowed to the inhabitants of Over-Tssel for other things, 
 and particularly for the money which they had been obliged 
 to raise, to save their towns from threatened conflagration. || 
 Agreeably to this latter opinion, the states of Holland gave 
 their vote on the 2Tth of February 1667.^} I think that they 
 
 * Gentil. ubi suprA. f Aitz. 1. 1. J: Aitz. 1. 44 $ Aitz. 1. 46. 
 
 I) Aitz. 1. 46. K Ibid. 1. 47.
 
 TREATISE ON THE LAW OF WAR. 195 
 
 were wrong, as far as concerned the monies levied on the in- 
 habitants, to redeem the towns from conflagration; for, al- 
 though it is certain, that that money actually saved them from 
 being destroyed by fire; still it was not just, that the other confe- 
 derates should bear the loss, who had not been exposed to the 
 risk of perishing in that manner. For, nobody will venture 
 to say, that a whole fleet ought to contribute, if a single ship is 
 obliged to have recourse to jettison, for her own safety. 
 
 VII. Relates solely to the right of the several provinces of the 
 Dutch confederation to make peace, as incident to that of making 
 war. It is entirely local, and therefore is omitted in this trans- 
 lation. 
 
 VIII. One who resides in an enemy 's country, under a safe 
 conduct from the sovereign, may sue and be sued. 
 
 It has been questioned, whether, if a safe conduct is granted 
 to an enemy to come into our country, he may be sued here 
 by his creditors. It was so decreed by the court of Holland, 
 in 1588, and their judgment was confirmed by the supreme 
 court, on the 18th of September 1590. Those decrees, I think, 
 were perfectly just; because, the safe conduct given to an 
 enemy, is only to protect him against hostile acts; he becomes, 
 by virtue of it, as it were, a neutral, and neutrals may be sued 
 and detained for their debts. At the same time, if we permit 
 enemies to be sued, we must not prevent them from pro- 
 secuting their demands against us in a course of law,* as I 
 have discussed more at large in a former chapter, f 
 
 IX. A safe conduct to go into or pass through the enemy's 
 country, is no protection out of the enemy's territory. 
 
 A safe conduct, in time of war, is given for no other pur- 
 pose than that the party may safely come into the enemy's 
 territory, and continue there. Wherefore, I am astonished, 
 that lawyers should have doubted, whether he, who has a safe 
 
 * In England, in a plea of alien enemy, the defendant must not only state 
 " that the plaintiff was born in a foreign country, in enmity with Great- 
 Britain" hut " that he is not residing in the British dominions under letters of 
 safe conduct from the king." Casseres v. Bell, 8 Term Rep. 166. T- 
 
 \ Above, c. 7. p. 55, 56.
 
 196 TREATISE ON THE LAW OF WAR. 
 
 conduct to pass through the enemy's territory, may be taken 
 in his own country by the law of war. This question was 
 agitated in the case of the marquis of Messarano, who had re- 
 ceived a safe conduct from the Spaniards to go from his own 
 castle to Venice, passing through the Spanish Milanese terri- 
 tories; but before he sat out on his journey, the castle was 
 taken by the Spaniards, and himself made prisoner. It was 
 asked, whether he was exempted by his safe conduct from 
 paying any ransom? Bellus, who himself sat as judge in the 
 cause, did not venture to decide any thing, as he relates 
 himself in his treatise De Re Militari;* neither does Zouch, 
 agreeably to his custom, give any opinion on the point.f 
 But Menochius\ distinguishes, whether the marquis was then 
 ready for his journey, or whether he was not; in the first case, 
 he thinks that the safe conduct would; in the second, that it 
 would not have availed him. The doubts of Bellus and Zouch 
 nppear to me as silly as the decision of Menochius. The 
 marquis's castle and territory being invaded by the Spaniards, 
 he was himself most lawfully a prisoner; because he had only 
 asked for a protection in the enemy's territory, and not in his 
 own, nor had he stipulated for a peace or a truce, but merely 
 for a passage through the Milanese country into the territory 
 of Venice. Whatever, therefore, was not within that particular 
 object, was to be decided by the law of war. 
 
 X. It is unjust to compel a sovereign to make war or peace. 
 
 As it is unjust to force a prince to make war against his 
 will, it is so likewise, to compel him to make peace. But, 
 when the states-general, on the one hand, were afraid of the 
 French, and the great men of England, on the other, were dis- 
 pleased with the extent of the territory of France, the kings of 
 England and Sweden and the states-general, made a treaty on 
 the 23d of January 1668, in which, among other things, they 
 stipulated, that the Spaniards, who were then at war with the 
 French, should be compelled to accept of certain conditions, 
 
 * P. 9. No. 15, & seq. 
 
 + De Jure Fee. p. 2. $ 9. Q. 19. 
 
 | De arbitr. judic. quxst. 1. 2. cent. 4. cas. 336. n. 19, & seq.
 
 TREATISE ON THE LAW OF WAR. 197 
 
 pi-escribed by the said treaty; and that after they had accepted 
 them, if the king of France should, nevertheless, continue to 
 make war upon Spain, the allies should interfere in an hostile 
 manner; and thus, the French and Spaniards -were COMPELLED 
 to make peace. 
 
 In another instance, when it was not thought proper for the 
 welfare of Europe, that the king of Sweden should also possess 
 Denmark, the French, the English and the states-general, on 
 the 21st of May 1659, forced the king of Sweden to make 
 peace with the Danes,* and thus saved the king of Denmark 
 from total ruin, to which he was exposed in consequence of 
 having excited a neighbour more powerful than himself. 
 
 These are real injuries, cloaked with the pretence of a wish 
 to make peace; a pretence which has been used to cover in- 
 juries of a much greater magnitude, which have been fashion- 
 able for some years past; for, princes, in their treaties with 
 each other, have been in the habit of disposing of the do- 
 minions and territories of other sovereigns as if they were 
 their own. Such injuries are the offspring of what is called the 
 reason of state: *>> 
 
 Monstrum horrendum, informe, ingens, cui lumen ademptum. 
 
 If governments will yield to that monster, and indulge them- 
 selves in following its dictates, and considering the property of 
 other nations as their own, it is idle and useless to investigate 
 any more the law of nations, or discuss its principles. 
 
 * Aitz. 1. 4a 
 
 THE END
 
 ERRATA. 
 
 Page 4, note $, line 2, for " first consul," read emperor. 
 
 Page 21, dele note J. It was a mere newspaper account, which was not 
 confirmed, and ought not to have had a place in this work. 
 
 Page 31, dele note *, and in lieu thereof, insert a reference to p. 87. 
 
 Page 46, line 10, for " Paul," read Paulus. 
 
 Page 71, in the note, 3d line from the bottom, after " lord Hawkesbury" 
 read now carl of Liverpool. 
 
 Page 82, note f, line 7, for " any," read my. 
 
 Page 91, note \. This note is not sufficiently clear, having been written 
 in too much haste. It was enough to have observed, that our author does 
 not seem to have sufficiently attended to the distinction established by the, 
 edict to which he refers between neutral vessels, which, after leaving a 
 blockaded port, go voluntarily into their own or some other free port, or go 
 into such port on being chased and to avoid pursuit; in the second case, they 
 are lawfully captured, if met with coming out of such port; and it makes no 
 difference, whether it is the port of their actual destination, another port of 
 their own country, or some other free or friendly port. Our author seems to 
 think, that it does make a difference, and this mistake leads him into an un- 
 necessary discussion about words. 
 
 Page 118, note *, line 4, for " for, of other rights he may judge as if no 
 war existed," read " for, of other rights, unconnected -with the luar, or its ob- 
 jects, he may judge as if no war existed." 
 
 Page 120, the note of reference * ought to be placed after the words 
 " commercial intercourse," in the fourth line from the bottom of the text. 
 
 Page 131, note J, first line, for " 26th of January" read 20th of January. 
 
 Page 148, in the note, line 7, for " 3000 rials de vellon, equal to g!500," 
 read 60,000 rials de vellon, equal to 3000 an( j a( ] ( j > t j lat t ^ e amount of 
 that security may be moderated at the discretion of the officers of the admiralty, 
 according to the size of the privateers, and the number of men and guns lahicfi. 
 they respectively carry. 
 
 Page 183, note , first line, for " may," read might. 
 
 Page 186, line 12, in note, for "treaty of Utrecht," read "treaty of 
 peace of Utrecht." 
 
 Subjoin the mark T. to the following notes: 
 
 * and t p. 105 f p. 106 p. 114 { p. 115 \ p. 125 and in a few 
 copies of this work, to notes, p. 184 t P- 187, an ^ * P- 188.
 
 A TABLE 
 
 Of the Titles Contained in the Index. 
 
 ACTIONS and Credits of an Ene- 
 my, 
 
 Actions at Civil Law, 
 Aitzema, 
 Algerines, 
 Alien Enemy, 
 Allies, 
 
 Ancient Writers on Maritime Law, 
 Arms, 
 
 Army. 
 
 i 
 
 Bays, 
 
 Barbary, 
 
 Bergen, 
 
 Besieged Place,s, 
 
 Blockade, 
 
 Bottomry. 
 
 Camps, 
 
 Captains of Privateer Ships, 
 
 Captures, 
 
 Casus Foederis, 
 
 Choses in Action, 
 
 Civil Law, 
 
 Civil Rights, 
 
 Commerce, 
 
 Commission, 
 
 Conclusiveness of the Sentences of 
 
 Foreign Prize Courts, 
 Confiscation, 
 Conquered Countries, 
 Cnsolato del Mare, 
 
 Contraband, 
 
 Contracts at the Civil Law. 
 
 Declaration of War, 
 Deserters, 
 
 Dominion of the Sea, 
 Dutch. 
 
 Enemies, 
 
 Enemy's Goods, 
 
 English, 
 
 Enlisting in Foreign Service, 
 
 Enlisting men on Foreign Territory, 
 
 Expatriation. 
 
 Fishery, 
 
 Fleet, 
 
 Foreign Laws, 
 
 Foreign Sentences, 
 
 Fraud, 
 
 Freight, 
 
 French, 
 
 Fortifications,. 
 
 Generosity, 
 Goods and Chattels, 
 Governments. 
 
 Holsters. 
 
 Immovables situate in an Enemas 
 
 Country, 
 Insurance (Contract of) 
 
 f2C
 
 202 
 
 TABLE OF TITLES. 
 
 Insurance of Enemy's Property, and 
 
 of Trade with Enemies. 
 Joint Capture, 
 Jurisdiction, 
 Jus Pignoris, 
 Justice. 
 
 Lands, 
 
 Land Forces, 
 
 Lawful Goods, 
 
 Law of Nations, 
 
 Laws, 
 
 Leghorn, 
 
 Letters of Marque and Reprisal, 
 
 Lien. 
 
 Maritime Loan, 
 Military Rights. 
 
 Neutrals, 
 
 Neutral Forts, 
 
 Neutral Goods, 
 
 Neutrality, 
 
 Neutral Port, 
 
 Neutral Ships, 
 
 Neutral Territory, 
 
 Non-commissioned Privateers. 
 
 Occupation, 
 
 Orders, 
 
 Owners of Privateers. 
 
 Perfidy, 
 
 Piracy, 
 
 Pirates, 
 
 Postliminy (Right of) 
 
 Prsesidia, 
 
 Prisoners, 
 Privateers, , 
 Prizes, 
 Prize Courts, 
 Promises, 
 Property. 
 
 Reason, 
 
 Reason of State, 
 Recapture, 
 Reprisals, 
 Retaliation, 
 Roman Law. 
 
 Saddles, 
 
 Safe Conduct, 
 
 Salute, 
 
 Salvage, 
 
 Santerna, 
 
 Securities of Privateers, 
 
 Sentence of Condemnation, 
 
 Ship, 
 
 Spaniards, 
 
 Straceha, 
 
 Swords, Hilts and Belts. 
 
 Tobacco, 
 
 Trade with Blockaded or Besieged 
 
 Places, 
 
 Trading with Enemies, 
 Treaties, 
 Tripolilans, Tunisians. 
 
 United Provinces of the Netherlands. 
 Van Tromp (Admiral). 
 
 War, 
 
 Warlike Stores.
 
 INDEX 
 
 TO THE 
 
 TEXT AND NOTES. 
 
 ACTIONS AND CREDITS OF 
 
 AN ENEMY 
 
 1VI AY be lawfully confiscated 51 
 
 But the advantage and security of com- 
 merce has induced in Europe, a ge- 
 neral relaxation from this severity 
 
 57 
 
 Stipulation on this subject, between 
 Great Britain and the United States 
 
 52 
 
 Actions and credits not confiscated, 
 ifiso jure, there must be a judgment 
 of condemnation; otherwise they re- 
 turn to the first owner, after the 
 war 5 7 
 
 ACTIONS AT CIVIL LAW. 
 
 Actio negotiorum gestorum 42 
 
 de fiaufierie 1 49 
 
 noxalis ibid. 
 
 exercitoria 1 50 
 
 institona ibid. 
 
 AFRICA. 
 
 The Algcrines, Tunisians and Tripoli- 
 tans, and other nations inhabiting 
 the coast of Barbary in Africa, not 
 to be considered as pirates 131 
 
 They have a regular government of 
 their own, send and receive ambas- 
 sadors, and make treaties 132 
 
 Make slaves of their prisoners ibid. 
 
 The Spaniards make slaves of them 
 in like manner ibid. 
 
 The Dutch sell them to the Spaniards 
 to be made slaves of, but do not 
 keep them in slavery at home 21, 
 
 133 
 
 AITZEMA. 
 
 Character of his book, Of Matters of 
 State and War 25 
 
 ALGERINES. 
 See Africa. 
 
 ALIEN ENEMY. 
 
 Residing in a country, under alicense 
 from the sovereign, may sue and 
 be sued 195 
 
 In England, a plea of alien enemy must 
 negative the fact, that the alien is 
 residing under a safe conduct ibid. 
 
 See Enemies. Safe Conduct. 
 
 ALLIES. 
 
 Considered as one state 71, 115 
 
 What is to be done by a state bound by 
 conflicting alliances? 70 
 
 Remarkable instance of two nations at 
 the same time in alliance and at war 
 with each other 125 
 
 Territories belonging to an ally, and 
 reconquered from the common ene- 
 my, to be restored ibid. 
 
 ANCIENT WRITERS ON MARI- 
 TIME LAW 
 
 Treated with disrespect by the author 
 
 44, 171 
 Vindication of their character 17 I 
 
 ARMS. 
 
 By the Roman law, individuals were 
 not allowed to manufacture arms, 
 without a special permission from 
 the government 98
 
 204 
 
 INDEX. 
 
 Now arms may be sold at home to 
 belligerents, by the subjects of a 
 neutral state 178 
 
 But must not be carried by neutrals to 
 the belligerent's country ibid. 
 
 Much less to a besieged town or block- 
 aded port 82 
 
 See Contraband. Blockade. 
 
 ARMY, 
 
 Wherever it may be, is considered in 
 many respects, as afiraesidium of the 
 sovereign to whom it belongs 1 1 7 
 
 May keep under confinement the pri- 
 soners which they have with them, 
 on neutral territory ibid. 
 
 See Prasidia. Prisoners. 
 
 BAYS 
 
 Are considered as a part of the adja- 
 cent territory 60 
 
 Case of the ship Grange, captured in 
 the bay of Delaware ibid. 
 
 BARBARY. N 
 
 See Africa. 
 
 BERGEN. 
 
 Capture by the English, of Dutch East 
 India ships in the port of 6 1 
 
 BESIEGED PLACES. 
 
 See Trade with blockaded and besieged 
 Places. 
 
 BLOCKADE 
 
 Is, according to Grotius, the situation 
 of ports shut or closely invested by 
 an armed force 82 
 
 The modern idea of universal block- 
 ade, not formerly entertained 84 
 
 The Dutch, however, once boasted of 
 having blockaded all the British do- 
 minions 31 
 
 But there was no foundation for that 
 boast ibid. 
 
 The fiflaniards also pretended to 
 blockade all the Portuguese territo- 
 ries ibid. 
 
 And the English those of Sfiain 92 
 But the right was always controverted 
 and denied 31, 92 
 
 See Trade with Blockaded and Besieg- 
 ed Places. 
 
 BOTTOMRY. 
 
 By the Roman law, the bottomry or 
 respondentia creditor does not lose 
 the benefit of his pledge by thecon- 
 fiscation of the ship or cargo 98 
 
 Nor by the law of nations, when con- 
 fiscation is merely ex re, and not 
 ex delicto 8 I 
 
 Nor when the ship or cargo are ran- 
 somed or given up by the captor 192 
 
 See Confiscation. Jus Pignoris. Mari- 
 time JLoan. 
 
 CAMPS 
 
 May be besieged as well as towns 85' 
 
 CAPTAINS OF PRIVATEER 
 SHIPS 
 
 Cannot enter into a partnership to- 
 gether, as to the captures which 
 they may make, without the con- 
 sent of their owners 141 
 
 Various decisions of the courts of 
 Holland thereon ibid. 
 
 Responsible in cases of unlawful cap- 
 ture or depredation at sea, to the 
 whole extent of the injury suffered, 
 not merely to the amount of the se- 
 curity given 14K 
 
 See Privateers. Owners of Privateers. 
 
 CAPTURES 
 
 Made by pirates, do not effect any 
 change of property 12T 
 
 Made by vessels not commissioned, 
 iire considered in Great Britain and 
 France,-^ Droits of admiralty 162 
 
 Examination on general principles, of 
 the respective claims of the owners, 
 freighters, and master and mariners 
 of the capturing vessel, to the bene- 
 fit of such captures, when made in 
 their own defence, or otherwise, in 
 a justifiable nmnr.cr I5.i
 
 INDEX. 
 
 205 
 
 Decision of the author thereon 156 
 Arguments in support of it 158 
 
 Decision of the supreme court of the 
 United States in an analogous case 
 of salvage ibid. 
 
 Property captured, and afterwards ran- 
 somed or given up by the enemy, 
 is not thereby liberated from the 
 claims of the insurer or lender at 
 maritime risk 192 
 
 See Property. Pirates, Privateers. 
 Recafiturc. 
 
 CASUS FCEDERIS. 
 
 See Treaties of Defensive Alliance. 
 
 CHOSES IN ACTION. 
 
 See Actions and Credits. 
 
 CIVIL LAW. 
 
 See Contracts at the Civil Law. Ac- 
 tions at Civil Law. Roman Laiv. 
 Law of Nations. 
 
 CIVIL RIGHTS 
 
 Distinguished from military rights 
 
 116 
 See Military Rights. 
 
 COMMERCE 
 
 Ceases ipso jure between enemies 23 
 
 Sometimes permitted on both sides in 
 war 5 5 
 
 Which state of things is a middle state 
 between war and peace 25 
 
 But how when the same trade which 
 is carried on between the bellige- 
 rents, is prohibited to neutrals? ibid. 
 
 See Trade ivith Enemies. Trade with 
 Blockaded and Bcsiezed Places. 
 
 COMMISSION. 
 
 Irregular in a subject to accept a 
 commission from a foreign sove- 
 reign, without the permission of his 
 own 130 
 
 Made penal by the law of the United 
 States 129 
 
 Different punishment, if commission 
 is received within or without the 
 limits of the United States ibid. 
 
 See letters of Marque and Reprisal. 
 Privateers. Piracy. Pirates. 
 
 CONCLUSIVENESS of the SEN- 
 TENCES of FOREIGN PRIZE 
 COURTS. 
 
 Effects of that doctrine in England and 
 
 the United States 169 
 
 Originated in misapprehension and 
 
 mistake 168 
 
 Reprobated by Lords Thurlow and 
 
 Ellenborough 1 69 
 
 Exploded in Pennsylvania and New 
 
 York ibid. 
 
 Evaded in England, and how ibid. 
 
 CONFISCATION, 
 
 The only penalty at present for carry- 
 ing contraband goods to the enemy 
 
 74, 75 
 
 Extinguishes every prior lien 32 
 Except when the property is only 
 condemned ex re, and not ex de- 
 lie to ibid. 
 
 CONQUERED COUNTRIES 
 Pass cum onerc, in the same manner 
 as lands purchased 191 
 
 CONSOLATO DEL MARE. 
 
 Styled a farrago of nautical laws 44 
 Vindicated 1 7 1 
 
 CONTRABAND. 
 
 Contraband articles are those which 
 are proper for war, although they 
 may be used out of war 77 
 
 Such are arms, warlike stores, and 
 materials of themselves fit to be 
 used in war 78
 
 INDEX. 
 
 But not materials which are NOT of 
 themselves fit for warlike use, but 
 might easily be adapted to it 78 
 
 Grotius's distinction, as to articles 
 which are contraband 75 
 
 Provisionsnotcoritrubund, unless when 
 curried to a place besieged, or ol/ie r- 
 ivise pressed by famine 69, 73 
 
 Observation on the word otherwise 
 
 ibid. 
 
 It was formerly a capital crime at 
 Rome to sell arms to the barbari- 
 ans 74 
 
 Now contraband goods are forfeited 
 \v4ien taken in the act of carrying 
 to the'enemy 76 
 
 Confiscation of the goods is in such 
 cases the.only penalty 74, 75 
 
 The ship itself is not confiscated 95 
 
 Nor the innocent goods, mixed with 
 the contraband articles 96 
 
 Unless they belong to the same owner 
 with the prohibited goods 97 
 
 See Provisions. Sword Hilts and Belts. 
 Holsters. Saddles. Tobacco. Shifis. 
 
 CONTRACTS AT THE CIVIL 
 LAW. 
 
 Locatio ojierum 163 
 
 rcrum ibid. 
 
 Quasi-contract negotiorum gestorum 
 
 42 
 
 DECLARATION OF WAR, 
 
 Not required by the law of nations 7 
 Customs of various nations on this 
 subject 9 
 
 Precedents in modern times 11, 16 
 Notice to enemy's subjects to with- 
 draw 12 
 See War. 
 
 DESERTERS, 
 
 Question about delivering up, not yet 
 settled in Kurotie 174 
 
 flubncr and Cialiari'a opinions there- 
 on 174 
 
 Those who promote desertion, not 
 less guilty than the deserters them- 
 selves 174 
 
 DOMINION OF THE SEA, 
 
 Coextensive with the power of arms 
 
 from the land 59 
 
 Claimed by the English nation 92 
 
 See Bays. Neutral Territonj. Englisft. 
 
 DUTCH, 
 
 Bo-ust of blockading the whole of the 
 British dominions 31 
 
 Deny the same right to the Spaniards, 
 with respect to Portugal ibid. 
 
 Retaliate on the French, who, while 
 in alliance with them, refused to 
 restore Dutch property, recaptured 
 from the common enemy 120 
 
 Retaliate on neutrals the injuries re- 
 ceived from their enemies 61, 86 
 
 Their conduct approved of by our au- 
 thor ibid. 
 
 Contrary to his own principles 33, 86 
 
 Forbid their enemy's armed vessels 
 from approaching their shores, un- 
 less supported by a fleet, under the 
 penalty of being treated as pirates 
 
 131 
 
 Confiscate their vessels purchased by 
 neutrals after condemnation in the 
 enemy's country 29 
 
 Capture and confiscate S/ianish ves- 
 sels covered by the English flag 
 
 111 
 
 The Englifih seize their vessels, by 
 way of retaliation 1 12 
 
 Refuse to admit certain districts and 
 towns into their union after recon- 
 quering them from the enemy 123 
 
 Complain to the king of England of 
 the conduct of the Ostend privateers 
 
 137 
 
 Refuse to restore to the Portuguese, 
 their allies, countries reconquered 
 from the common enemy 125 
 
 Are in alliance, and at the same time 
 at war \viih Portugal ibid.
 
 INDEX. 
 
 207 
 
 ENEMIES. 
 
 Every thing lawful against 2 
 
 May be put to death 1 9 
 
 Were formerly sold into slavery 20 
 
 Were made prisoners among the 
 Romans when found on their terri- 
 tory at the commencement of a war 
 
 21 
 
 Rarely done in our times, though 
 the right still exists 19, 20 
 
 Modern European manners have 
 put an end to the summum jus of 
 war 2 1 
 
 Prisoners are now exchanged ac- 
 cording to their grades ibid. 
 
 Some nations still make slaves of 
 their prisoners ibid. 
 
 Compliments and civilities between 
 enemies 18 
 
 The body of an enemy delivered up 
 for interment 23 
 
 Enemy has no persona standi inju- 
 diczo, and cannot sue in courts of 
 justice 55 
 
 Unless he resides in the enemy's 
 country, with a safe conduct from 
 the sovereign, or for a debt con- 
 tracted in commerce allowed by the 
 sovereign 55 
 
 Where he can sue, he may also be 
 sued, and vice versa 56, 195 
 
 See Alien Enemy. Actions and Credits. 
 Safe Conduct. Prisoners. Enemy's 
 Goods. Africa. Dutch. Spaniards. 
 
 ENEMY'S GOODS 
 
 Found in our country at the com- 
 mencement of a war may be con- 
 fiscated 1 1 
 
 Without any declaration or notice ibid. 
 
 Unless otherwise provided for by trea- 
 ty 13 
 
 Various instancesof such treaties ibid. 
 
 -May lawfully be taken when found on 
 board of a neutral ship 109 
 
 But the neutral who carries the goods 
 is guilty of no offence against the 
 law of nations 108 
 
 The goods are confiscated, not ex de- 
 li c to, but ex re 111 
 
 And therefore freight is paid thereon 
 to the neutral master 1 1 1 
 
 ENGLISH. 
 
 Generous act of their government, 
 in giving Notice to the Emperor of 
 France of a design to assassinate 
 him 4 
 
 Prohibit all trade with the Spaniard* 
 
 92 
 
 Found that prohibition on their claim 
 to the dominion of the sea 93 
 
 Lend their flag to the Spaniards at 
 war with the Dutch, and highly re- 
 sent the condemnation of the co- 
 vered property . Ill 
 
 Guided in their judicial decisions 
 by considerations of state policy 
 
 38, 145, 167, 172, 189 
 
 Capture Dutch East India, ships in 
 the port of Bergen 6 1 
 
 Proceed against a French and a Spa- 
 nish privateer as being pirates 
 
 134, 136 
 
 Do not permit the expatriation of 
 their subjects 175 
 
 Sec Blockade. Expatriation. Conclu- 
 siveness of the Sentences of Foreign 
 Prize Courts. 
 
 ENLISTING IN FOREIGN SER- 
 VICE. 
 
 Unlawful to enlist into the service of 
 an enemy 177 
 
 Prohibited by Dutch edicts ibid. 
 
 Severe punishment inflicted by the 
 Dutch on those who should enter 
 into the naval service of the enemy 
 
 ibid. 
 
 But a subject or citizen may enter 
 into the service of a friendly sove- 
 reign, where no prohibition exists 
 to the contrary ibid. 
 
 American citizens prohibited by statute 
 from enlisting (within the limits 
 of the United States') into the land 
 or naval service of any sovereign 
 print t 17l>
 
 208 
 
 INDEX. 
 
 Or abroad, to serve on board of foreign 
 privateers 129 
 
 See JLxfiatriation. 
 
 ENLISTING MEN ON FOREIGN 
 TERRITORV. 
 
 Not lawful to entice away soldiers from 
 the service of another prince 174 
 
 Nor to enlist private individuals on 
 foreign territory, contrary to the 
 prohibition of their own sovereign 
 
 ibid. 
 
 But where no such prohibition exists, 
 mennotinthe actual service of their 
 prince may be enlisted 175 
 
 No difference in principle between 
 enlisting men and purchasing war- 
 like stores 178 
 
 Treaty on this subject between the 
 Romans and dntiochus ibid. 
 
 Enlistments for foreign service pro- 
 hibited in Holland 179 
 
 And in the United States, with the 
 exception of transient foreigners, 
 subjects of the prince into whose 
 service they are enlisted ibid. 
 
 Difference between the Dutch and 
 Sfianiards on this subject 180 
 
 EXPATRIATION 
 
 Lawful, wherever the country is not 
 a prison 175 
 
 Not lawful among the Muscovites, 
 English, and Chinese ibid. 
 
 Prohibited in France, by Louis XIV. 
 
 ibid. 
 
 But was lawful there before ibid. 
 
 Was prohibited on account of the pro- 
 testants ibid. 
 
 Is lawful by the constitution of Penn- 
 sylvania, ibid. 
 
 And by the law of the United Slatca, 
 when bona fide, and under such cir- 
 cumstances as not to endanger the 
 safety of the state 176 
 
 Provided it is not otherwise provided 
 by the law of the state from which 
 *he citi/en cmiy rates 
 
 An expatriated citizen is considered 
 as an alien for commercial pur- 
 poses 176 
 
 Quaere, whether an American citizen 
 can expatriate himself otherwise 
 than in the manner which may be 
 prescribed by our own laws; and 
 whether his expatriation will be 
 sufficient to rescue him from pun- 
 ishment for a crime committed 
 against the United States? ibid. 
 
 FISHERY. 
 
 Herring fishery permitted on both 
 
 sides, between the French and 
 
 Dutch during war 25 
 
 FLEET, 
 
 Wherever it may be, is considered 
 in many respects as a iirx sidium of 
 the nation to whom it belongs 117 
 
 See Pr&sidia. 
 
 FOREIGN LAWS. 
 
 Respect to be paid to 130 
 
 In the United States and Great Bri- 
 tain no regard is paid to the re- 
 venue laws of other countries 131 
 Various opinions on this subject ibid. 
 
 FOREIGN SENTENCES. 
 
 See Conclusiveness of the Sentences of 
 Foreign Prize Courts. 
 
 FRAUD, 
 
 In matters of insurance, assimilated 
 to piracy by the law of Holland 1 3 1 
 
 FREIGHT, 
 
 Not allowed to the master of a neutral 
 
 vessel on contraband goods 81 
 
 SCCKH on enemy's goods ibid. 
 
 Reason of this difference 85
 
 INDEX. 
 
 209 
 
 Not allowed to the captor of an ene- 
 my's vessel in right of the master, 
 unless he has carried the goods to 
 the place of their destination 105 
 
 Or in certain cases, when brought to 
 the claimant's own country ibid. 
 
 Not merely allowed pro raid itineris, 
 but as if the whole voyage had been 
 performed 112 
 
 FRENCH, 
 
 Pursue a Spanish ship into Torbay, 
 and invade the houses of the in- 
 habitants to take the articles which 
 the Spaniards had concealed there 
 
 65 
 
 Refuse to restore to the Dutch, their 
 allies, their property recaptured 
 from the common enemy 1 19 
 
 The Dutch retaliate 120 
 
 Formerly condemned a neutral ship 
 for having enemy's goods on board, 
 and neutral goods for being on board 
 ef an enemy's ship 102 
 
 FORTIFICATIONS. 
 
 Not lawful to erect or repair fortifi- 
 cations during a truce, or pending 
 a capitulation 193 
 
 GENEROSITY 
 
 .Is a voluntary act, and cannot be re- 
 quired from an enemy 3 
 
 Exemplified in the conduct of the Ro- 
 mans and English 4 
 
 See Justice. 
 
 GOODS AND CHATTELS 
 
 Of an enemy may be lawfully confis- 
 cated 1 7 
 
 May be removed from the enemy's 
 territory within a certain time after 
 war commenced, when so stipulated 
 by treaty 17 
 
 Instances of similar treaties 13 
 
 May be otherwise detained as soon 
 as Avar is begun 15, 17 
 
 See War. Enemies. 
 
 GOVERNMENTS, 
 
 Responsible to foreign states for the 
 unlawful conduct of their subjects 
 in war 1 35 
 
 Not bound to repair every loss that 
 is occasioned by the calamities of 
 war 194 
 
 HOLSTERS 
 Are contraband 
 
 79 
 
 IMMOVABLES SITUATE IN 
 AN ENEMY'S COUNTRY 
 
 May by the strict law of war be con- 
 fiscated 51 
 
 But are now only sequestered, and 
 the rents and profits received for 
 the benefit of the state ibid. 
 
 The lands themselves return to the 
 owner at the peace ibid- 
 
 An enemy cannot acquire lands in his 
 enemy's country, even by will or 
 inheritance 52 
 
 Lands so descending, confiscated in 
 Holland ibid. 
 
 INSURANCE (Contract of) 
 
 Defined by the author 164 
 
 by Roccus ibid. 
 
 The most frequent in commercial 
 
 countries, after those of purchase, 
 
 sale and hire 163 
 
 Not known to the ancients, and why 
 
 ibid. 
 The object of this contract 164, 169 
 
 INSURANCE OF ENEMY'S PRO- 
 PERTY, and of TRADE WITH 
 ENEMIES, 
 
 ; Illegal on general principles 164 
 
 Impolitic, as it furthers the operations 
 
 of the enemy ibid.
 
 210 
 
 INDEX. 
 
 Prohibited from the earliest times, in 
 almost every country in Kurojie 1 65 
 
 Tolerated for a while by the English 
 and Dutch ibid. 
 
 By England, during the three wars 
 which immediately preceded the 
 French revolution ibid. 
 
 Lord Hardioickt's and Lord Mans- 
 Jield's decisions on the subject of 
 similar insurances 166 
 
 Dictated by political motives 167 
 
 Overruled by later decisions ibid. 
 
 The freedom of insurance ought to 
 be coextensive with the freedom 
 of trade 1 70 
 
 No insurance is lawful which is made 
 on a voyage prohibited by the laws 
 of the country 172 
 
 Even though it be made in general 
 terms ibid. 
 
 Property cannot be insured in En- 
 gland against capture by the cruiz- 
 ers of Great Britain, or her co-bel- 
 ligerents ibid. 
 
 Reason given therefor by the English 
 judges ibid. 
 
 Better reason afforded by an American 
 judge ibid. 
 
 JOINT CAPTURE, 
 On general principles, requires actual 
 cooperation and assistance 144 
 
 Particularly between privateers ibid. 
 But between vessels of war, political 
 considerations have induced in some 
 countries the admission of construe - 
 .. true assistance 145 
 
 French and English law on this sub- 
 ject ibid. 
 Law of Holland 143 
 In cases of constructive assistance, 
 the being in sight at the time of 
 capture is the firinci/ial criterion 
 
 145 
 
 But is not sufficient in England,, in 
 favour of privateers claiming to 
 be joint captors with ships of war 
 
 ibid. 
 
 Otherwise in favour of ships of war, 
 in competition with privateers ibid. 
 
 No precise English decision on this 
 point, in a case between privateers 
 only 145 
 
 Land forces in England, not entitled 
 to share in a capture without actual 
 cooperation 14$ 
 
 JURISDICTION. 
 
 By the law of nations, pirates may be 
 tried and punished wherever found 
 
 133 
 
 But captures made by virtue of a com- 
 mission from a sovereign can only 
 be tried by the tribunals of the cap- 
 tor 134 
 
 Reasons given by professor Ruther~ 
 forth in support of this doctrine 
 
 13a 
 
 Various schemes proposed for vesting 
 this power in other tribunals ibid. 
 
 Hubner and Galiani ibid. 
 
 The tribunals of neutral sovereigns 
 will, however, restore the property 
 of their own subjects or citizens, 
 brought into their own ports 136 
 
 And prizes made in violation of their 
 neutrality ibid. 
 
 The courts of the United States have 
 done so in various instances ibid. 
 
 Act of Congress as to captures made 
 within the waters or jurisdiction of 
 the United States ibid. 
 
 JUS PIGNORIS, 
 
 Not extinguished, according to the 
 
 Roman law, by the confiscation of 
 
 the property pledged 80 
 
 Otherwise by the law of nations 81 
 
 Not so, however, when the property 
 
 is confiscated merely ex re, and not 
 
 ex delicto ibid. 
 
 The maxim of the civil law is Jiscus 
 
 ccdit creditorihus 80 
 
 With us the opposite maxim prevails, 
 
 et creditores crduntJiKCO ibid. 
 
 See Freight. Confiscation. 
 
 JUSTICE 
 And generosity compared
 
 INDEX. 
 
 211 
 
 LANDS. 
 See Immovables. 
 
 LAND FORCES 
 
 Not entitled to participate in the bene- 
 fit of a capture, without actual co- 
 operation and assistance 146 
 
 See Joint Cajilures. 
 
 LAWFUL GOODS 
 Not to be condemned on account of 
 their being shipped on board the 
 same vessel with contraband goods 
 
 94 
 
 Unless all the goods belong to the 
 same owner ibid. 
 
 LAW OF NATIONS 
 
 Not to be deduced from European 
 manners and customs 11,17 
 
 To be deduced from reason and usage 
 
 76 
 
 Or an almost perpetual succession of 
 treaties ibid. 
 
 Its principles may safely be sought 
 for in the rules of Roman jurispru- 
 dence 107 
 
 In the discussion of general principles, 
 we are bound to attend more to rea- 
 son than to treaties 109 
 
 The rules of the law of nations cannot 
 be dispensed with by individuals 
 
 169 
 
 LAWS, 
 
 To affect future, and not past trans- 
 actions 1 70 
 
 LEGHORN, 
 
 Capture by the French of an English 
 vessel near the port of 61 
 
 LETTERS OF MARQUE AND 
 
 REPRISAL 
 
 Is the old technical name for a priva- 
 teer's conimis&ion 183 
 Is often applied to designate a mer- 
 chant vessel armed for defence ibid. 
 See Reprisals. 
 
 LIEN. 
 See Jus Pignoris. Freight. Canfisca- 
 
 tion. 
 
 MARITIME LOAN, 
 
 Or Loan at Maritime Risk. 
 What it is at the civil law 192 
 
 See Bottomry. 
 
 MILITARY RIGHTS, 
 Distinguished from civil rights 116 
 Evidenced by possession only ibid. 
 
 NEUTRALS, 
 
 Residing on the enemy's territory, 
 
 to be considered as enemies 25 
 
 Not to interfere with the war, or what 
 
 , relates to the war 67 
 
 Have nothing to do with the justice 
 
 or injustice of the war 68, 70, 71. 
 
 75 
 
 Unless threatened with danger 70 
 Grotius of a different opinion 67 
 Not to send arms or men to either 
 party 68, 70 
 
 May trade with the belligerents in 
 every kind of merchandize, except 
 contraband, as they did before the 
 war 76 
 
 May freely trade with either bellige- 
 rent in innocent articles 104 
 A neutral violating his neutrality is 
 considered by the belligerent as 
 an individual enemy 172 
 
 NEUTRAL FORTS, 
 
 No act of hostility to be committed 
 within reach of their cannon 6? 
 
 Bot fresh pursuit may be continued 
 
 ibid. 
 
 Provided the fortresses are spared, 
 though they should assist the ene- 
 my ibid 
 
 Cannot lawfully be occupied by a bel- 
 ligerent, for fear his enemy .-houk. 
 do the same 19^ 
 
 Various opinions on this subject ibid-
 
 212 
 
 INDEX. 
 
 NEUTRAL GOODS, 
 
 On the territory of a belligerent, can- 
 not he made prize 2.i 
 
 Nor M-hen taken on board of an ene- 
 im'sship 100 
 
 Though die owner knew her to be a 
 hostile vessel 104 
 
 Are however presumed to belong to 
 enemies, until the contrary is prov- 
 ed 101, 104 
 
 And are considered as good prize by 
 the modern iaw of nations 103 
 
 Rule of the Conaolato on this subject 
 
 104 
 
 Old French law, that the goods of an 
 enemy confiscate those of a friend 
 
 102 
 
 Grotius endeavours to explain it away 
 
 ibid. 
 
 But Valin rebukes him for it 103 
 
 Modern law of nations confiscates 
 neutral goods on board of an ene- 
 my's ship, but leaves enemy's goods 
 on board of a neutral vessel free 
 
 ibid. 
 
 NEUTRALITY 
 
 Defined 66 
 
 Divided into absolute and qualified 69 
 
 Difficult to draw the line between a 
 qualified neutrality and an alliance 
 
 69 
 
 Our author seems to confound them 
 together 75 
 
 No adequate word in the Latin lan- 
 guage to express neutrality 66 
 
 Its general duties ibid. 
 
 The Dutch once considered it lawful 
 for their subjects to fight for either 
 party 67 
 
 Not approved ibid. 
 
 NEUTRAL PORT. 
 Whether a prize may be lawfully con- 
 demned while lying in a 118 
 See Prxxidia. 
 
 NEUTRAL SHIPS. 
 
 Law of Holland, that neutral ships 
 coming from enemy's ports might 
 be lawfully condemned 73 
 
 Was special, and made for the occa- 
 sion 7$ 
 Explained 30, 87 
 
 NEUTRAL TERRITORY, 
 
 No hostilities to be committed there- 
 on 58, 64 
 
 Nor in neutral ports 58 
 
 Nor at sea within reach of cannon 
 shot from the neutral shore 59 
 
 But an attack already commenced 
 may be pursued 62 
 
 So that it be done without injury to 
 the neutral 63 
 
 Captures made within the neutral ju- 
 risdiction to be restored at the ex- 
 pense of the neutral sovereign ibid. 
 
 Troops not permitted to pass through 
 it, to commit depredations on a 
 friend 64 
 
 See Van Tromfi. Bergen, Leghorn. 
 Bays. Dominion of the Sea. 
 
 NON-COMMISSIONED PRIVA- 
 TEERS. 
 
 To whom their prizes are to belong 
 when made in their own defence, 
 or from some other justifiable cause 
 
 155 
 
 Arguments of the author to prove 
 that they ought only to belong to 
 the actual captors ib'id. 
 
 In England and France, prizes taken 
 by non-commissioned vessels are 
 considered as droits of admiralty 
 
 162 
 
 See Captures, Salvage. 
 
 OCCUPATION 
 
 Of a town or place gives a legal pos- 
 session of its .dependencies 45 
 
 Provided no part thereof is occupied 
 by the enemy 46 
 
 For there is no jointenancy in war 
 
 ibid.
 
 INDEX. 
 
 21* 
 
 But the occupation even of the metro- 
 polis of an empire, does not confer 
 the possession of distant dependen- 
 cies noi yet subdued 49 
 
 Historical examples in point ibid. 
 
 ORDERS 
 
 In war are strictly to be obeyed 193 
 
 OWNERS OF PRIVATEERS, 
 Responsible to the whole extent of 
 the injury suffered, not merely the 
 amount of the security given 149, 
 
 153 
 
 Though the vessel is not regularly 
 
 commissioned, if the owner ordered 
 
 her to make captures 153 
 
 See Privateers. Captains of Privateer 
 
 Shifts. 
 
 PERFIDY, 
 
 Reprobated in war 3 
 
 Exemplified in the conduct of a Dutch 
 
 captain 1 5 
 
 PIRACY, 
 
 Various definitions of 127, 161 
 
 Difference between piracy by the law 
 of nations and at the common law 
 
 128 
 
 Quxre, whether piracy by the law of 
 nations merely is punishable by 
 the admiralty courts of the United 
 States and Great Britain 128 
 
 Woiidde&on's opinion thereon 129 
 
 By the law of nations, the punishment 
 of piracy is Death 1 3 8 
 
 Nor can this punishment be mitigated 
 
 138 
 
 Various offences made or assimilated 
 
 to piracy by municipal law 128, 
 
 129, 130, 131 
 
 See Pirates. 
 
 PIRATES 
 
 Are considered as enemies to the hu- 
 man race 133 
 
 And therefore may be tried and punish- 
 ed by the tribunals of any country 
 into which they may be brought 
 
 133 
 
 Those are pirates and robbers who, 
 without the authorization of any 
 sovereign, commit depredations by 
 sea or land 127" 
 
 Those who commit depredations un- 
 der commissions from different so- 
 vereigns at war with each other 
 are pirates 128, 129 
 
 Nevertheless, the English once pro- 
 ceeded against a regularly commis- 
 sioned French privateer as a pirate 
 
 134 
 
 And in like manner against a S/ianish 
 privateer 136 
 
 Quxre, as to those who sail under 
 commissions from different sove- 
 reigns not at war with each other 
 
 130 
 
 Various opinions thereon ibid. 
 
 Irregular to accept a commission from 
 a foreign prince without the per- 
 mission of one's own government 
 
 130 
 
 Prohibitory law of the United States 
 thereon 129 
 
 POSTLIMINY, RIGHT OF 
 
 Does not take place, except as to those 
 things which have not become the 
 property of the enemy 39 
 
 Takes place when captured property 
 is retaken before it is carried into a 
 port of the enemy 38 
 
 Or of an ally in the war 37" 
 
 Even though it has long remained in 
 a neutral port 38 
 
 But yuxre, if it has been condemned 
 while lying there ibid. 4i 
 
 Opinion of Sir IVilliam Scott and de- 
 cision of the supreme court of the 
 United States on this question ibid. 
 
 After a legal condemnation every 
 former claim must cease 39 
 
 Among the Roman*, applied princi- 
 pally to persons, and why 1 16 
 
 Took place in the territory of an ally 
 or neutral 1 13
 
 INDEX. 
 
 Treaty between the Romans and Car- 
 thaginians 1 14 
 
 Among the modern nations of Europe, 
 it is held as a maxim, that there is 
 no right of postliminy as to things 
 on neutral territory 115 
 
 Distinction on this subject between 
 military and civil rights, and the 
 manner in which they are respec- 
 tively evidenced 116 
 
 As to prisoners, the right of postUmi- 
 ny takes place even on neutral tcr 
 ritory 1 1 7 
 
 Mattel's and Loccenius's opinions 01, 
 the subject 1 17, 1 8 
 
 Is applicable to a whole people as we:! 
 as to individuals 122 
 
 When part of a state, after being con- 
 quered by an enemy, is reconquered 
 by the nation to which it belonged, 
 it is entitled to all iis former rights 
 by the luw of postliminy ibid. 
 
 The Dutch, however, refused to allow 
 that right in several instances ibid. 
 
 PRjESIDIA, 
 
 What it means 27, 36 
 
 The ports of an ally are prtsidia 38, 
 
 41, 113 
 
 Different opinion once entertained in 
 Holland 38 
 
 A fleet is considered us firxsidia 29, 4 1 
 So is an army in many respects 1 17 
 Neutral ports, whether to be consider- 
 ed as prx^idia 38, 41 
 Are so to all purposes of safety 1 13 
 And a belligerent may condemn cap- 
 tured property while lying there 
 
 38 
 Various opinions on this point ibid. 
 
 PRISONERS 
 
 Were formerly made slaves of 20 
 
 Are at present exchanged, according 
 
 to their grades 21 
 
 PRIVATEERS. 
 
 fitting out privateers to commit hos- 
 tilities against a state at peace with 
 us, made penal by the law of the 
 
 United Gluten 129 
 
 Or serving on board such privateer 
 
 129 
 
 Different punishment,if offence com- 
 mitted within or without the limits 
 of the United States ibid. 
 
 The subject of privateering belongs to 
 the law of nations 139 
 
 It is a long time since sovereigns have 
 begun to make use of privateers as 
 auxiliary to the public force 140 
 
 They were called Cruisers, Capers, 
 Freebooters ibid. 
 
 They are not pirates, because they 
 act under the sanction of public 
 authority ibid. 
 
 The bcin;^ in sight at the time of cap- 
 ture, not sufficient to entitle a pri- 
 vateer to be considered as a joint 
 c.tpior 144 
 
 Security given by privateers in Hol- 
 land* Great firitain, France, Spain, 
 and the United Stares 147 
 
 As to Spain, turn to the Errata. 
 
 See Commission. Joint Capture. 
 
 PRIZES 
 
 May be condemned in the belligerent's 
 courts at home while lying in a 
 neutral port 38 
 
 Sir William Scott's opinions thereon 
 
 ibid. 
 
 Decisions of the supreme court of the 
 United States in point ibid. 
 
 May by the law of nations be sold in 
 a neutral port 117, 120 
 
 But the right to sell must be equally 
 granted to both parties; otherwise 
 neutrality is no longer preserved 
 
 120 
 
 Unless there is a special treaty with 
 one of the panics ibid. 
 
 Neutral governments generally find 
 it inconvenient to grant an indis- 
 criminate leave to sell prizes in 
 their ports, and therefore when no 
 treaty exists, refuse it to all parties 
 
 ibid. 
 
 Edict of the states-general on this sub- 
 ject 12.1 
 
 The author's opinion thereon 13V
 
 INDEX. 
 
 215 
 
 PRIZE COURTS, 
 
 How constituted at present in Europe 
 
 189 
 
 Their judgments not sufficient to re- 
 lease the sovereign from responsi- 
 bility ibid. 
 
 Exemplified in the result of the con- 
 troversy between Great Britain and 
 Prussia, respecting the Silesia loan 
 
 ibid. 
 
 And by recent treaties ibid. 
 
 The sentences of foreign prize courts 
 ought not to be conclusive evidence 
 in favour of underwriters ibid. 
 
 See Sentences of foreign Prize Courts, 
 
 PROMISES, 
 
 To be kept in war 3 
 
 See Treaties. 
 
 PROPERTY 
 
 In ships and merchandize, when 
 changed by capture 27 
 
 By the Roman law, only when carried 
 intra pr<esidia 27 
 
 Modern doctrine of twenty-four hours' 
 possession 27 
 
 Not observed in Holland 28 
 
 Contrary to reason ibid. 
 
 The English press the Dutch to adopt 
 it ibid. 
 
 Once not held to be changed in Hol- 
 land, in a ship coming out of a 
 blockaded port after being pur- 
 chased by a neutral, until he had 
 carried it into his own, or some 
 other free port 29 
 
 Edict of Louis XIV. to the same ef- 
 fect 33 
 
 Retorted by the Dutch 34 
 
 Notification of the English to the Han&e 
 Towns to the same effect 33 
 
 A proportional rate of salvage adopted 
 in Holland, in lieu thereof 39 
 
 Same rule agreed upon by treaty with 
 England 37, 40 
 
 In immovables taken in war, is not 
 acquired bypossession alone, unless 
 it be &Jirm possession 45 
 
 See Occupation. Captures. Recapture. 
 
 REASON, 
 
 The source of the law of nations 76 
 Its authority of the greatest weight 1 
 Is the soul of the law of nations 1 1 
 The supreme law of nations 96 
 
 Its dictates may safely be sought for 
 in the rules of the Roman law 107 
 
 REASON OF STATE, 
 What it is 197 
 
 When listened to by sovereigns, there 
 is an end to the law of nations ibid. 
 
 RECAPTURE, 
 
 Salvage due on 4 1 
 
 Such salvage estimated in England 
 
 and Holland according to the time 
 
 that the prize has been in possession 
 
 of the enemy 39, 40 
 
 This rule is not equitable, 42 
 
 Nor is that of twenty-four hours* 
 
 possession ibid. 
 
 Rule of the Consolato thereon 44 
 
 See Captures. Property. 
 
 RECIPROCITY. 
 
 Whatever right one arrogates to him- 
 self by the law of war he must also 
 allow to his enemy 56 
 
 REPRISALS 
 
 Mean recaption or retaking 182 
 
 Analogous in name and substance to 
 the common law process ( f wither- 
 nam ibid. 
 
 Unknown to the Romans ^ and why ibid. 
 Distinction between general and spe- 
 cial reprisals ibid. 
 General reprisals are the first step at 
 the commencement ot a public war, 
 and are considered as equivalent to 
 a declaration of it ibid. 
 Speci.il reprisals defined 182, 184 
 Often lead to war 187 
 Not to be granted without full know- 
 ledge of the cause. 183
 
 216 
 
 INDEX. 
 
 Nor unless there has been an open 
 denial of justice 184 
 
 The sovereign whose subjects are 
 complained of must be applied to 
 in the first instance 185 
 
 Various treaties on this subject ibid. 
 
 Opinion of the English jurists 188 
 
 Precautions taken in France to pre- 
 ventlet'.ers of reprisal being granted 
 without sufficient cause 183 
 
 Punishment in case such have been 
 obtained on false pretences 184 
 
 The right of granting letters of repri- 
 sal belongs to the sovereign alone, 
 and cannot be delegated 187 
 
 Reprisals may be granted for a debt, 
 as well as for an injury done by ac- 
 tual violence 184 
 
 May be granted to a resident alien, as 
 well as to a subject ibid. 
 
 May be enforced on the delinquent's 
 property in the country of the sove- 
 reign who granted them 188 
 
 But it must be done by legal means, 
 and not manuforti ibid. 
 
 Unless there is danger in delay ibid. 
 
 RETALIATION 
 
 To be exercised only on enemies, and 
 not through the injury of a friend 
 
 33 
 
 Instances to the contrary, and obser- 
 vations thereon 61, 86 
 
 ROMAN LAW 
 
 Is denominated in Europe the com- 
 mon law 53, 183 
 
 Is a safe guide to discover the true 
 principles of the law of nations 107 
 
 Forbade the manufacturing of arms 
 without the permission of the sove- 
 reign 98 
 
 Nor by that law could any one kill 
 an enemy of the Roman people, 
 who was not a regularly enlisted 
 soldier 139 
 
 The Romans, however, adopted the 
 law of -S'o/ow, permitting private Dis- 
 sociations for the purpose of plun- 
 der, qucre? jbid. 
 
 Forbade navigation during the winter 
 months 163 
 
 On the subject of ex post facto laws 
 
 169 
 
 See Actions at Civil Law. Contracts at 
 the Civil Law. 
 
 SADDLES 
 Are contraband 
 
 SAFE CONDUCT 
 
 No proteciion out of the place for 
 which it is granted 195 
 
 One who resides in an enemy's coun- 
 try, under a safe conduct from the 
 sovereign, may sue and be sued 
 
 ibid. 
 
 But cannot be sued where he is not 
 allowed to sue 56 
 
 See Alien Enemy. 
 
 SALUTE, 
 
 In close seas, or within the extent of 
 the jurisdiction of the sovereign of 
 the coast, to be given precisely in 
 such manner as that sovereign re- 
 quires 59 
 
 SALVAGE 
 
 Allowed by the supreme court of the 
 
 United States to the owners and 
 
 freighters of the Salovr ship 158 
 
 Contrary doctrine maintained by the 
 author, in the analogous case of cap- 
 tures made by non-commibsioned 
 privateers 155 
 
 Allowed in cases of recapture, and 
 how 39 
 
 See Captures. Recaptures. 
 
 SANTERNA. 
 
 See Ancient writers on Maritime Law. 
 
 SECURITIES OF PRIVATEERS 
 
 Not responsible beyond the amount 
 
 of their bonds or stipulations 149
 
 INDEX. 
 
 217 
 
 SENTENCE OF CONDEMNA- 
 TION 
 
 Converts the military right to a prize 
 into a civil right, and is the legal 
 evidence thereof 1 1 6 
 
 Is always in England, as to neutral 
 property taken in war, on the ground 
 of its having belonged to enemies, 
 whatever may be the real specific 
 cause or motive 173 
 
 Palpable injustice of the British doc- 
 trine, which makes a foreign sen- 
 tence conclusive evidence of non- 
 neutrality in favour of underwriters 
 
 168 
 
 This doctrine, however profitable it 
 may be to belligerents, is ruinous 
 to neutral nations, and particularly 
 to America ibid. 
 
 Is exploded in Pennsylvania and Af.-w 
 York ibid. 
 
 See Concluxiveness of the Sentences of 
 Forein Prize Courts. 
 
 SHIP 
 
 Not to be confiscated for contraband 
 goods on board 94 
 
 Unless shipped with the privity of the 
 owner of the ship ibid. 
 
 Various treaties on this subject 
 
 Confiscated by the law of Prance, if 
 
 . contraband amount to three quarters 
 
 of the cargo 9'J 
 
 Rule in England, to release the ship 
 without freight, unless the owner is 
 par (ice/is fraudis ibid. 
 
 Confiscated by the civil law for having 
 unlawful goods on board, when ship- 
 ped with the privity of the master, 
 otherwise no;. 106 
 
 If vessel belongs to the master him- 
 self, this principle cannot apply, be- 
 cause he generally knows by the 
 bills of lading what goods are ship- 
 ped on board 107 
 
 And it may be doubted, whether the 
 owners are not bound for the fault 
 of the master ibid. 
 
 See Neutral S/n'fis. 
 
 SPANIARDS 
 
 Pretend to blockade all the Portu- 
 guese dominions 3 1 
 
 Their claim opposed by the Dutch 
 
 ibid. 
 
 T\\t, English pretend in the same man- 
 ner to blockade the Spanish domi- 
 nions 92 
 
 See Blockade. Dutch, Englinh. 
 
 STRACCHA. 
 
 Ancient Writers on Maritime Law. 
 
 SWORD HILTS AND BELTS 
 Are contraband 79 
 
 TOBACCO, 
 
 Once pretended by the Spaniards to 
 be contraband, and why 80 
 
 TRADE WITH BLOCKADED 
 OR BESIEGED PLACES. 
 
 Unlawful to carry any thing to such 
 places, whether contraband or not 82 
 
 Grotius's opinion thereon ibid. 
 
 Mere confiscation not a sufficient 
 punishment for these who thus 
 trade; a corporal penalty, at least, 
 if not death, often inflicted 84 
 
 But this severity applies only to a 
 strict blockade ibid. 
 
 And at this day no punishment is in- 
 flicted but confiscation 85 
 
 The same in our American treaties 85 
 
 Blockade of the French ports by the 
 Dutch, and edict thereon . 30, 86 
 
 In goods not contraband, has some- 
 times been allowed 92 
 
 Prohibition of trade with places not 
 actually blockaded or besieged, too 
 unjust to be defended 85 
 
 See Blockade. English. Dutch. Spa- 
 niards. 
 
 |2E
 
 -18 
 
 INDEX. 
 
 TRADING WITH ENEMIES 
 Forbidden by the law of war 23, 24 
 By positive l.tw in Hoi/and ibid. 
 
 By France, in a declaration of war 
 against England 2 1 
 
 Was formerly held lawful in i:tf- 
 lund 1 G5 
 
 Is now prohibited there 167 
 
 Sometimes permitted in part, by 
 agreement between the belligerent 
 nations 25 
 
 J'"rance and England in the present 
 war trade with each other, and in- 
 terdict thcit trade to neutrals ibid. 
 Illegal on general principles 165 
 
 Prohibited in Holland, even to foreign- 
 ers 1 7 1 
 See Insurance of Enemy's Property. 
 
 TREATIES 
 
 Made with a view to war, are to be 
 observed in war 3, 51 
 
 Are from necessity to be interpreted 
 by the interested parties 75 
 
 Of defensive alliance, how to be con- 
 strued 7 1 
 
 Lord Haivkcsbury's opinion thereon 
 cited ibid. 
 
 The party bound to assist is to judge 
 of the casus fcederis 72 
 
 One, or perhaps two treaties which 
 vary from general usage, do not 
 constitute the lajv of nations 76 
 
 TRIPOL1TANS. TUNISIANS. 
 
 See Africa. 
 
 UNITED PROVINCES OF THE 
 NETHERLANDS. 
 
 Whether they had a right to make 
 war and peace in their separate ca- 
 pacities, and in what cases 181, 189 
 
 VAN TROMP (Admiral). 
 His attack on the S/ianish fleet in the 
 Downs 6 1 
 
 WAR. 
 
 Various definitions of 1 
 
 Begins from the mutual use of force 1 1 
 A public declaration not necessary 7 
 Every thing lawful in war, except 
 perfidy 3 
 
 Orders in war to be strictly obeyed 
 
 193 
 
 Governments not bound to repair eve- 
 ry loss that is occasioned by the ca- 
 lamities of war 194 
 It h unjust to compel a sovereign to 
 make war or peace 196 
 See Declaration of War. Enemies, 
 
 WARLIKE STORES. 
 
 See Contraband. 
 
 
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