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 the 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 on 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
fitted, 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 na