Front Page Titles (by Subject) no. xxix - The Works of Alexander Hamilton, (Federal Edition), vol. 6
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no. xxix - Alexander Hamilton, The Works of Alexander Hamilton, (Federal Edition), vol. 6 
The Works of Alexander Hamilton, ed. Henry Cabot Lodge (Federal Edition) (New York: G.P. Putnam’s Sons, 1904). In 12 vols. Vol. 6.
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The sixteenth article is entirely conformable to the usage and custom of nations. The exchange of consuls had already taken place between us and Great Britain; and their functions and privileges being left to the definition of the law of nations, we shall be exempt from those unpleasant controversies that too often arise from special conventions, which enlarge the consular privileges, power, and jurisdiction.
The agreement that either party may punish, dismiss, or send back a consul for illegal or improper conduct, is calculated to prevent national misunderstandings, and to secure a respectful deportment in the consular corps. I have not observed that this article has been disapproved of from any quarter.
The seventeenth article, which respects the capture and detention of the vessels of the parties on just suspicion of having on board enemy’s property, or contraband of war, has been the object of intemperate censure—with how much justice it shall be the business of this paper to examine.
The principal complaint is, not that the article exposed our own property to loss by capture, for this is not the case, but that it does not protect enemy’s property on board our vessels. The defence of the article will rest upon the proofs which shall be exhibited, that it is in conformity with, and supported by, the clear and acknowledged law of nations—that law which pronounces that enemy’s goods on the high seas are liable to capture, and as a necessary means to this end, that neutral ships are there liable to examination or search.
The law of nature (as heretofore observed), applicable to individuals in their independent or unsocial state, is what, when applied to collections of individuals in society, constitutes the natural or necessary law of nations. An individual in a state of nature, for reparation of injuries, or in defence of his person and property, has a right to seize the property of his enemy, and to destroy his person.
Nations always succeed to the rights that the individuals who composed them enjoy in a state of nature; and hence it is that by the law of nations, from the earliest annals of society, the goods or property of one enemy have been considered as liable to be seized and applied to the use of another. This right must be so used as not to injure the rights of others; subject to this limitation, it is perfect, and an interruption of it by another is an injury. As in a contest between two individuals in a state of nature, no third has a right, without becoming a party in the controversy, to protect the property or defend the person of either of the parties; so in a war between two nations, no third nation can act out of its own jurisdiction, consistent with the duties of neutrality; or, without becoming a party in the war, protect the property of, or defend, either of the parties. Though nations are, in respect to each other, like individuals in a state of nature, the resemblance is not in every particular perfect. Individuals in a state of nature have not only the inferior dominion or private ownership of property, but the entire and perfect dominion over it. In society the latter right belongs exclusively to the nation, while the former belongs to the several members that compose it. Immovable things, such as lands, which are denominated the territory of a nation, are the immediate and special objects of this perfect dominion or paramount property. Movable things are the proper objects of inferior dominion or private ownership, and are not otherwise the objects of the national or paramount property than as they happen to be within its territorial limits. The perfect dominion or jurisdiction of a nation, in respect to property, extends over, and is bounded by, the lands thereof and the waters appurtenant to the same.
As soon, therefore, as movable things pass out of these limits, they cease to be under the dominion or jurisdiction of the nation, the private property of whose members they may be.
This private property, in movable things, may be enjoyed within the territory of a nation, by those who are not members thereof. Hence in a war between two nations, a member of one of which owns movables within the territory of a third or neutral nation, such movables or property are not liable to seizure by reason of the war; because, being within and under the exclusive jurisdiction of a third nation, it would be an injury to the right of such nation to go there and seize the same. So long as such movables remain within a foreign territory, they are objects of its dominion and protection; but as soon as they are carried out of the same, they cease to be any longer under its jurisdiction or protection.
In a war between two nations, all the members of each are enemies to the other, and all the property of the several members, as well as the strictly national property, is liable to seizure. In general the character of the owner, whether enemy or friend, decides whether property is liable to capture by reason of war; but the validity of the capture depends not only on the goods being enemy’s property, but likewise on the fact that the place of capture is one in which the right may be exercised without injury to the rights of a neutral nation. Hence the property of an enemy is liable to capture only within the respective territories or jurisdiction of the belligerent nations, or in a place not within the territory or jurisdiction of any nation. In either of these places the right may be exercised without injury to the rights of neutral nations. The limitation of this right, so far as respects enemy’s property found within the territory of one of the parties on the breaking out of war, has before been discussed, and placed, I flatter myself, on solid principles.
The main ocean not being within the territory or subject to the exclusive dominion of any nation, is a place where enemy goods may lawfully be captured. An impediment by any third nation to the exercise of the right of capture on the ocean by either of the belligerent parties, would be an injury.
As the goods of an enemy, within the territory of a neutral state, are under the protection thereof, the law of nations, for the reasons that have been stated, will not permit 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 an enemy, because the port is a part of the territory. When the goods of an enemy are on board the ship of an enemy, and the ship is in the main ocean, there is no doubt of our right to capture both the goods and the ship, because they are then in a place which is not the territory of any nation. But when the goods of an enemy are on board a neutral ship, and the ship is in the main ocean, though we have a right to take the goods, we have no right to take the ship, or to detain her any longer than is necessary to obtain possession of the goods; for the ocean itself is not territory, and neutral ships, as they are movable goods, can not be parts of the neutral territory, and consequently are no more under the protection of the neutral state than the same goods would be if they were passing through an unoccupied country in neutral carriages or on neutral horses.
A neutral ship (says Rutherforth in his Institutes, whose reasoning on this question I adopt) may indeed be called a neutral place; but when we call it so, the word place does not mean territory, it only means the thing in which the goods are contained. Though the goods of the enemy had been on board a ship 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 would protect the goods. Notwithstanding, a neutral chest is as much a neutral place as a neutral ship.
A ship, though a movable things, is under the jurisdiction of a nation whilst it continues in one of its ports; but as soon as it is out at sea, only the private ownership, or inferior dominion, of the ship remains, and it ceases to be under the dominion or jurisdiction of the nation. The case will be the same if, instead of supposing the ship to be the property of a merchant, we 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 ceases, and the right that remains is an inferior kind of property, which has the nature of private ownership. If the jurisdiction which a neutral state has over the ships of its 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.1
Notwithstanding a neutral nation, when its ship is in the main ocean, has no jurisdiction over the ship itself, as if it was a part of its territory, yet the nation, or some of its members, which is the same thing, will continue to have the inferior sort of property or ownership in it. This species of property will protect the ship from capture, though the enemy’s goods on board her may lawfully be taken.
But here a difficulty occurs. This inferior kind of property, called private ownership, to distinguish it from the jurisdiction over things, is an exclusive right; those who have such ownership in things, whether private or public persons, have a right to exclude all others from making use of such things; and by this means, the rights of others are often hindered from taking effect.
Wild beasts, birds, and fishes are, till they are catched, in common to all mankind; and I, in common with others, have a right to take them, and thereby to make them my own. But I cannot hunt, or shoot, or fish, without perhaps sometimes using the soil or water of another man; and as I have no right to use these without his consent, he may justly hinder me from doing any of these acts, as far as his right of property extends. Thus by private ownership I am prevented from taking such things as I should otherwise have a right to take, if they did not happen to be in such places as he had an exclusive right to. In like manner, though I have a right to take the goods of my enemy, when they are out at sea, yet may not the effect of this right be prevented by the inferior property or ownership which a neutral nation, or its members, have in the ship in which the goods are? If the law of nations is nothing but the law of nature applied to the collective persons of civil societies, instead of saying that the law of nations has decided otherwise, we should disclose a natural reason why it should determine otherwise. When I have merely a right to acquire property in a thing that is common to all mankind, but cannot do it without the use of what is already the property of some other man, this man neither does me an injury, nor encourages or protects others who have injured me, by excluding me from the use of what belongs to him. But when we have a right in war, upon account of the damage which the enemy has done us, to take goods of the enemy, and these are in a neutral ship, if the neutral state, though it has property to protect the goods against us, this protection makes it an accessory to the injury, which is the foundation of the claim upon the enemy to obtain reparation of damages, and consequently is inconsistent with the notion of neutrality.
But whilst this answer removes one difficulty, it brings another. If a neutral nation makes itself accessory to the damages done by the enemy, by protecting such enemy’s goods as she has a right to take for reparation of damages, when these goods are out at sea in one of its ships, why might not the same nation, without becoming in like manner an accessory, protect the same goods when the ship is in one of its ports, or when the goods are on land within its territory? A law of nations, which is natural as to the matter of it, and positive only as to the objects of it, will furnish an answer to this question.
Every State has, by universal acknowledgment and consent, by the law of nations, an exclusive jurisdiction over its own territory. As long, therefore, as a State keeps within its own territory, and exercises its jurisdiction there, the protection in question is not a violation of our rights; but when its ships are in the main ocean, as they are then in a place out of its territory, where, by the law of nations, it has no jurisdiction, this law will allow us to take notice of the protection which it gives to the goods of an enemy, and to consider it as an accessory to the damages done by the enemy, if it gives them protection.
In respect to the right of examination or search, if the end is lawful, and the examination or search a necessary mean to attain this end, the inference is inevitable, that the examination or search is likewise lawful.
If the question, whether enemy goods are seizable on board a neutral ship, were really doubtful, yet the right to search neutral ships must be admitted for another reason. All agree that arms, ammunition, and other contraband articles may not be carried to an enemy by a neutral power; without searching vessels at sea, such supply could not be prevented. The right to search, therefore, results, likewise, from the right to seize contraband goods. Again, the state of war authorizes the capture of enemy’s ships and goods; but on the main ocean, which is the great highway where the ships and goods of all nations pass, how are the ships and goods of an enemy to be distinguished from those of a friend? No other way than by examination and search. Hence, then, the right of search is deducible from the general right to capture the ships and goods of an enemy.
It would undoubtedly disembarrass the commerce of neutral nations were passports and ships’ papers received, in all cases, as conclusive evidence of the quality and property of the cargo. And did treaties, in fact, effectually secure an exemption from rude and detrimental inquisitions upon the ocean, they would become objects of inestimable worth to the neutral powers. But, notwithstanding the existence of stipulations in our other treaties [which aim at giving some force to similar credentials], can it be said that our ships have been visited with less ceremony by one party than by the other? And may not the experience of other nations, as well as that of our own, be appealed to, in proof of the opinion, that these stipulations, however exact and positive, are too little regarded by that class of men, to restrain and govern whose conduct they are instituted?
The right of search ought to be used with moderation, and with as little inconvenience as possible to the rights of nations not engaged in the war. And the law of nations, on the other hand, requires the utmost good faith on the part of the neutral powers. They are bound not to conceal the property of the enemy, but, on the contrary, to disclose it when examination shall be made; in confidence of this impartiality, the law of nations obliges the powers at war to give credit to the certificates, bills of lading, and other instruments of ownership produced by the masters of neutral ships, unless any fraud appear in them, or there be good reason for suspecting their validity. The right of search is [always] at the peril of those who exercise it; the right, notwithstanding [must be acknowledged] to be indubitable.
The reasoning employed to prove that all neutral ships on the main ocean are liable to search, and enemy goods on board them to capture, is supported by the ablest writers on public law, and their decision is believed to be unanimously in its favor.
The Italian states were the first among modern nations who cultivated the interests of commerce, and before the passage of the Cape of Good Hope, Venice and Genoa distributed the manufactures of Asia throughout Europe. They, therefore, first defined the rights of navigation. Their maritime regulations are collected in a work called Consolato del Mare; I do not possess the collection, but find the following quotation from it in Grotius.1
“If both the ship and freight belong to the enemy, then, without dispute, they become lawful prize to the captor; but if the ship belong to those that be at peace with us, and the cargo be the enemy’s, they may be forced by the powers at war, to put into any of their ports, and unlade; but yet the master must be satisfied for the freight of them.“
Grotius, that learned and persecuted friend of liberty, whose life and great talents were dedicated to the service of mankind, and who displayed so much ability and learning in defending the freedom of the seas and of commerce, is clearly of opinion that enemy goods are not protected by neutral bottoms; he even goes further, and allows that such property occasions great presumption that the vessel is, likewise, enemy property.1 Bynkershoek is of the same opinion.1 Puffendorf and Heinecius1 agree in this law; and Vatel, who is the latest writer, is explicit in his opinion. “Without searching neutral ships at sea,” says he, “the commerce of contraband goods cannot be prevented—there is then a right of searching. Some powerful nations have, at different times, refused to submit to this. At present a neutral ship refusing to be searched would, from that proceeding alone, be condemned as lawful prize.” “Effects belonging to an enemy, found on board a neutral ship, are seizable by the rights of war; but by the law of nature, the master is to be paid his freight, and not to suffer by the seizure. The effects of neutrals, found on board an enemy ship, are to be restored to the owners, against whom there is no right of confiscation.”
Other authors of respectability might be quoted; but those already named will be acknowledged as the ablest, and their authority the most decisive of any that can be cited. So strong, clear, and uninterrupted, are the authorities of the writers on public law in relation to these points, that the advocates of an opposite rule may be challenged to produce a single authority of approved respectability in support of their opinion.1
[1.][The jurisdiction here spoken of is relative to property, and altogether distinct from what is termed personal jurisdiction, which respects the relations between the society and its members. This latter species of jurisdiction is not confined to the territorial limits of a nation.]
[1.]Grotius, Book III., chap. i., sec. 5, Note.
[1.]Grotius, Book III., chap. i., sec. 8; Book III., chap. vi., sec. 6.
[1.]Bynkershoek, Quest. Fur. Pub., lib. i., cap. 13 and 14.
[1.]Heinecius, De Navibus, cap. 2, sect. 114, 115, 116.
[1.]This subject will be resumed and pursued under different aspects in another number.