to be reckoned warlike stores? Grotius has removed some of the uncertainty in this question, by dividing goods into three sorts. Some goods have no use, except in war, such as arms and ammunition. Some are of no use at all in war, and serve merely for pleasure. And some are of use either for the purposes of war, or for other purposes; such as money, provisions, ships, and the materials for the building, fitting out, or repairing of ships. The first sort is plainly contraband: and the second sort is plainly not so. In the third sort, in order to determine whether they are contraband or not, we must consider the condition and circumstances of the war. Where a war is carried on by sea as well as by land, not only ships of war which are already built, but the materials for building or repairing of ships, will come under the notion of warlike stores. It may be said, indeed, that timber or cordage may be used for other purposes, besides the building or fitting out of ships, or that it may be used for the building and fitting out of other ships, which are not ships of war. But this will be of no great weight: for the same might be said of horses, or saddles, or many other things which are commonly reckoned amongst warlike stores: they are capable of being employed for other purposes; the uses of them are not necessarily confined to the purposes of war. But as arms or ammunition are warlike stores in their own nature, so timber, or cordage, as well as horses, or saddles, may, in all reason, be reckoned warlike stores; when from comparing the sorts or the quantities of them with the condition and circumstances of the war, it appears, if not to be impossible, yet, at least, to be in the highest degree unlikely, that they should be designed for any other purposes besides the purposes of war. Even common provisions for the support of life will come under the notion of warlike stores, when they are going to a place, which is besieged or blockaded. They are not, indeed, such weapons, as will annoy an enemy in war; but they are such stores as will help the nation, to which they are carried, to make its defence in war more effectually, than it could have done without them, when one of its towns is besieged or blockaded. Sometimes, to remove all possibility of doubt about what goods are contraband, a nation that is at war, enumerates them particularly in treaties or compacts with neutral states: and such treaties leave the neutral states, with which they are made, at liberty to supply the enemy with all goods that are not enumerated in them. But these treaties do not operate as a law, and determine what shall, and what shall not be reckoned contraband amongst all nations whatsoever: they are, in this respect, like all other treaties, and are binding only between the nations that are parties to them. *Grotius, himself, confesses, that he was forced to examine this question by the law of nature; because he could find no evidence of a purely positive law of nations. But the law of nature, when it is thus applied to the collective body of nations, though our author does not call it the law of nations, is what we have hitherto called by this name, and is the only law of nations that has any real foundation. When contraband goods are carried to our enemy by a neutral state, which either did know, or might have known, that the assistance, • Grot. Lib. III. Cap. I. § V. which it thus gives to our enemy, will hinder the execution of our right; as this neutral state does us damage, it is obliged, in the opinion of Grotius, to make us amends; and if such amends is refused, we may justly make reprisals upon it to the amount of the damage. But here he supposes the contraband goods to have been delivered, and some actual damage to have been done. For if the neutral state has not done any actual damage, but only designed to do it, he does not allow us a right of reprisal, or even a right to take the contraband goods to our own use, unless we take them upon the claim of necessity; that is, unless the exigency of affairs is such, that we cannot possibly do without them. All that he allows us to do, when we are not pressed by such a necessity as this, is to compel the neutral state to give us security, by hostages, or pledges, or some other means, that it will not attempt any thing of the like sort for the future. If, indeed, the neutral state not only does a simple injury, but appears plainly to have had a malicious design of hurting us, by confirming and assisting our enemy in an unjust war against us; this, says Grotius, is a criminal act; and as we may punish it for such an act, in some other way; so, likewise, we may punish it by deprivation of goods, and, particularly, by seizing the contraband goods, which it was carrying to the enemy. But there is a reason, which our author does not take notice of, why we may, consistently with the law of nature, seize upon the contraband goods of a neutral state, which it is carrying to the enemy, as if they were the goods of an enemy, without considering this act as a crime, for which we may punish those, who are guilty of it, by depriving them of their goods. If we meet with the contraband goods in their passage, and prevent the delivery of them to the enemy; there is, certainly, no actual damage done to us by the neutral state, from which they came: there is only a design of doing us damage. And this design, if it is considered separately from its circumstances, will give us only a right of guarding against it, or, perhaps, of taking some security against any future attempt of the same sort. But the first instance of such an attempt is a breach of neutrality: a neutral state, by sending contraband goods to our enemy, whether it delivers them or not, makes itself so far, at least, an accessory to the war, as it would have given assistance to our enemy, if we had not prevented it. We cannot, indeed, treat it as a principal in the war, where it does not assist the enemy with its whole force. But as far as it is an accessory to the war we may treat it as an enemy, and, consequently, may seize the contraband goods, as if they had belonged to an enemy. The injury, which the neutral state attempts, as it is not completed, produces no claim to reparation of damages: but the attempt itself makes the neutral state an accessory to the injuries which we have received from the enemy: and thus the neutral state, by communicating in the injustice of the enemy, gives us a right to demand reparation of damages, as far as it has communicated in this injustice. Under the second question relating to neutral states, Grotius takes no particular notice of any thing, which may be done against them by a nation, that is at war, except what it is compelled to do by absolute and unavoidable necessity. If it has any right at all to seize upon any * Grot. Lib. III. Cap. I. § V. f Grot. Lib. III. Cap. XVII. § I. neutral towns, and to put garrisons into them to prevent them from falling into the enemies' hands, this right can arise from nothing but the extreme danger, which it would be in, if the enemy should get possession of them, and the plain evidence, that the enemy has a design to seize them, and would otherwise succeed in such a design. And even this right of necessity is subject to many restrictions. When we seize a town upon this pretence, we can only take the custody of it, and have no right to any jurisdiction over it: because, whatever the cus tody of the town may be, the jurisdiction over it cannot be necessary for our security. Whatever damages the nation, to which the town be longs, may suffer either upon account of our having the custody of it, or by our means, whilst it is in our hands, we are obliged to make reparation for them. And as soon as the necessity, with which we were pressed, is over, we are obliged to withdraw our garrison, and to give up the place into the hands of the nation, to which it belongs. But these are not the only restrictions of this right: there is another, which renders it so precarious in the exercise, as to be little better than no right at all. We cannot be justified, even by necessity, in seizing it, if the neutral state, to which it belongs, is pressed by an equal necessity. And since this state may reasonably apprehend itself to be in danger of being treated by the enemy as an accessory to our act of seizing the town, it has an equitable claim to judge of its own necessity: and, consequently, our claim of necessity can scarce take place consistently with justice, unless we have first obtained the consent of the state. We have a right, in war, to take the goods of the enemy. But this right is restrained to such goods as are either in our own territory, or in the territory of the enemy, or in places which are not parts of the territory of any state. For if the goods of an enemy are in the territory of a neutral state; since we have no right to go thither in a hos tile manner; they are under the protection of the state, and the law of nations will not allow us to take them. *In like manner we have no right to take them, if they are on board a ship, whilst the ship is in a neutral port; whether the ship itself is a neutral one, or belongs to the enemy; because the port is a part of the territory of the neutral state. When the goods of an enemy are on board the ship of an enemy, and the ship is in the main ocean, there can be no doubt about our right of taking both the goods and the ship: because they are then in a place which is not in the territory of any nation. But when the goods of an enemy are on board a neutral ship, and the ship is in the main ocean; though we have a right to take the goods, we have no right to take the ship, or to detain it any longer, than is necessary to obtain possession of the goods. For the ocean itself is no territory: and neutral ships, as they are moveable goods, are no parts of the neutral territory. As long as the ships continue in their own ports, the goods which are on board them, as well as the ships themselves, are within the neutral territory, and cannot be taken. But as soon as the ships come into the main ocean, the goods, which are on board them, are in no territory, and, consequently, are no more under the protection of the neutral state, than the same goods would be, if * Grot. Lib. III. Cap. I. § V. Note. they were passing through an uninhabited country, where no nation has jurisdiction, in neutral carriages, or on neutral horses. A neutral ship may, indeed, be called a neutral place: but when we call it so, the word, place, does not mean territory; it only means the thing, in which the goods are contained: and as this is a moveable thing, it is no part of the territory, and is no longer under the jurisdiction of the nation, than it continues within the territory. Though the goods of the enemy had been on board a ship belonging to the enemy, we might have said, in the same sense, that they were in a neutral place, if they had been locked up there in a neutral chest. But no one would imagine, that such a neutral place, as a chest, can be considered as a part of the territory of the neutral state, or that it could protect the goods; notwithstanding a neutral chest is as much a neutral place, as a neutral ship. The jurisdiction of a nation over things is confined to that tract of land, upon which it is settled, and to such waters as are appendages to that land. These immoveable things, which are called the territory of a nation, are the immediate objects of jurisdiction or paramount property. Moveable things are the proper objects of inferior property, or private ownership, and are no otherwise the objects of jurisdiction, than as they happen to be within the territory. Thus a ship, though it is a moveable thing, is under the jurisdiction of a nation, whilst it continues in one of its ports. But as soon as it is out at sea, only the private ownership or inferior property of the ship continues: it ceases to be under the nation's jurisdiction. The case will be the same, if, instead of supposing the ship to be the property of a private merchant, we suppose it to be the property of the nation. For though we cannot well call the property, which the nation has in such a ship, by the name of private ownership; yet when the ship comes into the main ocean, the jurisdiction or paramount property of the nation ceases; and the right that remains, is an inferior kind of property, which has the nature of private ownership. But if the jurisdiction, which a neutral state has over the ships of its members, or even over its own ships, ceases, when the ships are out at sea; the goods of an enemy that are on board such ships, cannot be under the protection of the nation in the same manner, as if the ships had been in one of its ports, or as if the goods had been on its land. Notwithstanding a ship, when it is in the main ocean, is no part of the territory of a nation, and, consequently, is not subject to the jurisdiction, which the nation has over things; yet the men, who are in it, as they are members of the nation, are still subject to the jurisdiction, which it has immediately over the persons of its members. It is proper to take notice of this jurisdiction, though it is not material to the present question: because otherwise, when I say, that the jurisdiction of a nation over its own ships, or the ships of its members ceases, as soon as they are in the main ocean, the reader might have imagined, that I suppose the whole jurisdiction of the nation to cease its jurisdiction, as well over the persons, who are in the ships, as over the ships themselves. When the seamen are on land, or in port, the nation has an immediate jurisdiction over them, as they are members of it, and a mediate jurisdiction over them, as they are persons within its territory. But when they are out at sea, though in one of its own ships, only the former sort of jurisdiction remains, and the latter sort ceases. In some nations, causes which arise at sea, and have no connexion with the land, whether they are civil or criminal, are cognizable by particular courts of marine or admiralty, which do not make use of the same forms that are used in other courts of the same nation, and do not proceed upon what is called the law of the land, or of the territory. It is plain, that, in the opinion of any nation, where such courts are established, a ship, when it is out at sea, is no part of its territory: for if it was, though there might be a distinction of courts, there could be no reason why the courts, which have cognizance of such causes as arise at sea, should decide according to any other law than what is the general law of the land, in all causes which are, in every respect, the same; except only, that they arise on the land, or are connected with it. Though a neutral nation, when its ship is in the main ocean, has no such jurisdiction over the ship itself, as if it was a part of its territory, yet either the nation itself, or some of the members of the nation, which is the same thing in the view of the law of nations, will continue to have an inferior sort of property, or ownership in it. And this inferior property, or ownership, will render it unjust in us to take the ship, notwithstanding we may lawfully take any goods of the enemy which åre on board. I But here a difficulty offers itself, which must not be overlooked. That inferior kind of property which we have called private ownership, to distinguish it from a jurisdiction over things, is an exclusive right: those persons who have such ownership in things, whether they are private or public persons, have a right to exclude all other persons from making use of these things. By this means, the rights of others are frequently hindered from taking effect. Wild beasts, and birds, and fishes, are, till they are catched, in common to all mankind; and I have a right, with the rest of mankind, to catch them, and to make them my own by catching them. But I cannot hunt, or shoot, or fish, without using the soil or the water of another man. And as I have no right to use these without his consent, he may justly hinder me from doing any of these acts, as far as his right of property extends. Thus, therefore, by his private ownership, I am hindered from taking such things, as should otherwise have a right to take, if they did not happen to be in such places as he has an exclusive right to. In like manner, though we have a general right to take the goods of an enemy, when they are out at sea, yet there is some reason to doubt, whether the effect of this right may not be hindered by the inferior property or ownership which a neutral nation has in the ship where the goods are. For it may be said, that, notwithstanding our general right to take the goods, the neutral nation considered merely as a private owner, has an exclusive right to its own ship; and, consequently, may hinder us from coming into the ship to take the goods. Those, who set up a purely positive law of nations, have nothing else to do here, in answer to this difficulty, but to prove the existence of such a law, and to show that this law has, in fact, determined otherwise. But if the law of nations is nothing else but the law of nature, applied to the collective persons of civil societies, instead of answering that the law of nations has determined other wise, we must find out a natural reason why it should determine other See Book I. Chap. V. § V. |