University of Virginia Library

3244. FREE SHIPS, Free goods, history of principle.—

When Europe assumed
the general form in which it is occupied by the
nations now composing it, and turned its attention
to maritime commerce, we found
among its earliest practices, that of taking the
goods of an enemy from the ship of a friend;
and that into this practice every maritime
State went sooner or later, as it appeared on
the theatre of the ocean. If, therefore, we are
to consider the practice of nations as the sole
and sufficient evidence of the law of nature
among nations, we should unquestionably place
this principle among those of natural laws. But
its inconveniences, as they affected neutral
nations peaceably pursuing their commerce, and
its tendency to embroil them with the powers
happening to be at war, and thus to extend the
flames of war, induced nations to introduce
by special compacts, from time to time, a
more convenient rule: “that free ships should
make free goods”; and this latter principle
has by every maritime nation of Europe been
established, to a greater or less degree, in its
treaties with other nations; insomuch, that all
of them have, more or less frequently, assented
to it, as a rule of action in particular cases.
Indeed, it is now urged, and I think with great
appearance of reason, that this is the genuine
principle dictated by national morality; and
that the first practice arose from accident,
and the particular convenience of the States
(Venice and Genoa) which first figured on the
water, rather than from well digested reflections
of the relations of friend and enemy, on
the rights of territorial jurisdiction, and on the
dictates of moral law applied to these. Thus
it had never been supposed lawful, in the territory
of a friend to seize the goods of an enemy.
On an element which nature has not subjected
to the jurisdiction of any particular nation, but
has made common to all for the purposes to
which it is filled, it would seem that the particular
portion of it which happens to be occupied
by the vessel of any nation, in the course of its
voyage, is for the moment, the exclusive property
of that nation, and, with the vessel, is
exempt from intrusion by any other, and from
its jurisdiction, as much as if it were lying in
the harbor of its sovereign. In no country, we
believe, is the rule otherwise, as to the subjects
of property common to all. Thus the
place occupied by an individual in a highway, a
church, a theatre, or other public assembly, cannot
be intruded on, while its occupant holds it
for the purposes of its institution. The persons
on board a vessel traversing the ocean,
carrying with them the laws of their nation,
have among themselves a jurisdiction, a police,
not established by their individual will, but by
the authority of their nation, of whose territory
their vessel still seems to compose a part, so
long as it does not enter the exclusive territory
of another. No nation ever pretended
a right to govern by their laws the ship of another
nation navigating the ocean. By what

law, then, can it enter that ship while in peaceable
and orderly use of the common element?
We recognize no natural precept for submission
to such a right; and perceive no distinction
between the movable and immovable jurisdiction
of a friend, which would authorize the
entering the one and not the other, to seize the
property of an enemy. It may be objected that
this proves too much, as it proves you cannot
enter the ship of a friend to search for contraband
of war. But this is not proving too
much. We believe the practice of seizing what
is called contraband of war, is an abusive
practice, not founded in natural right. War
between two nations cannot diminish the rights
of the rest of the world remaining at peace.
The doctrine that the rights of nations remaining
quietly in the exercise of moral and social
duties, are to give way to the convenience of
those who prefer plundering and murdering
one another, is a monstrous doctrine; and
ought to yield to the more rational law, that
“the wrong which two nations endeavor to
inflict on each other, must not infringe on the
rights or conveniences of those remaining at
peace”. And what is contraband, by the law
of nature? Either everything which may aid
or comfort an enemy, or nothing. Either all
commerce which would accommodate him is unlawful,
or none is. The difference between
articles of one or another description, is a difference
in degree only. No line between them
can be drawn. Either all intercourse must
cease between neutrals and belligerents, or
all be permitted. Can the world hesitate to
say which shall be the rule? Shall two nations
turning tigers, break up in one instant the
peaceable relations of the whole word? Reason
and nature clearly pronounce that the
neutral is to go on in the enjoyment of all its
rights, that its commerce remains free, not
subject to the jurisdiction of another, nor
consequently its vessels to search, or to enquiries
whether their contents are the property
of an enemy, or are of those which have been
called contraband of war. Nor does this doctrine
contravene the right of preventing vessels
from entering a blockaded port. This
right stands on other ground. When the fleet
of any nation actually beleaguers the port of its
enemy, no other has a right to enter their line,
any more than their line of battle in the open
sea, or their lines of circumvallation, or of encampment,
or of battle array on land. The
space included within their lines in any of those
cases, is either the property of their enemy,
or it is common property assumed and possessed
for the moment, which cannot be intruded
on, even by a neutral, without committing
the very trespass we are now considering,
that of intruding into the lawful possession
of a friend. [202] —
To Robert R. Livingston. Washington ed. iv, 408. Ford ed., viii, 88.
(M. Sep. 1801)