§ 174.

In the 17th century, and onward, until toward the end of the 18th, no general rule runs through conventional law: the same states are found to make treaties of directly opposite character at the same epoch. The Dutch, being the principal carriers of Europe, aimed to put their trade on a footing of security; and the first treaty between Christian powers containing the principle, "free ships, free goods," was one between the United Provinces and Spain in 1650. We say between Christian powers, because a treaty of France with the Porte, in 1604, contained the same provision. In 1654 England, in a treaty with Portugal, for the first time agreed that the ship should cover the cargo; while in a treaty of the same year with the Dutch republic, the old rule touching the liabilities of hostile goods continued. Again, in the treaty of Breda, made by these same two powers, in 1667, free ships make free goods for the first time in their diplomatic intercourse, while a treaty of England with Denmark makes no change in the old usage. By the treaty of the Pyrenees, in 1659, renewed in 1668, France and Spain agreed that the cargo should follow the liabilities of the ship, whether neutral or hostile, of which rule the Dutch secured the benefit in their intercourse with these two states in 1661. Many treaties of the close of Century XVII. enlarge the privileges of neutrals, as that of Nymwegen in 1678, and of Ryswick in 1697, as far as France and the Dutch were concerned. In the commercial treaties connected with the peace of Utrecht in 1713,* the analogy of the peace of the Pyrenees was followed, in making all goods in neutral bottoms free, and in hostile liable to capture. A similar stipulation appears afterwards in a treaty of 1762, between Russia and Sweden, and in that of France with the United States, when she acknowledged their independence, in 1778. Thus, while earlier usage and many treaties protected neutral property, wherever found, but not enemies' property, many important treaties of the century before 1780, gave freedom to the neutral ship and to whatever it contained, but not to neutral goods on an enemy's vessel.

* See Dumont, VIII. 1, p. 348, Arts. XVII., XVIII.

The law of France, meanwhile, followed by that of Spain, was severe towards neutrals with whom no treaty existed. The edict of Henry III., given out in 1584, formally confiscates neutral goods on enemies' vessels, as well as enemies' on neutral vessels. The maritime ordinance of Louis XIV., framed in 1681, went farther still. It contains the following article: "All ships laden with the goods of our enemies, and the merchandise of our subjects or allies found in an enemy's vessel, shall be lawful prize." By allies here, not allies in war, but neutrals were aimed at, as it appears by an arrêt made a few years afterward. Things continued thus until in 1744, under Louis XV., a regulation freed neutral ships from the infection of the hostile cargo, but the same enactment ordained that neutral goods, the growth or fabric of enemies, should be confiscated. Again, in 1778, under Louis XVI., a regulation contained an implied sanction of the maxim, that the neutral flag covers the cargo, coupling it, however, like the treaty of the Pyrenees and others, with the opposite, that the hostile flag exposes the cargo; and these maxims have governed the conduct of France towards neutrals since then until recent times, with the exception of her retaliatory measures under Napoleon towards England, the effects of which fell heavily on neutrals. Spain, in 1702 and 1718, followed the legislation of the elder Bourbon line, and in 1779 adopted the relaxation proclaimed in France the year before.*

The armed neutrality set on foot in 1780 was a plan to from the severe but ancient way of dealing First armed neuescape with neutrals which Great Britain enforced, by trality. advancing certain milder principles of international law. These were, that neutral vessels had a right to sail in freedom from harbor to harbor and along the coasts of belligerents; that the property of enemies not contraband of war on neutral ships should be free; that a port is blockaded only when evident danger attends on the attempt to run into it; that by these principles the detention and condemnation of neutral ships should be determined; and that, when such vessels had

* Comp. Ortolan, II. 86, et seq., esp. 93

been unjustly used, besides reparation for loss, satisfaction should be made to the neutral sovereign. The parties to this league engaged to equip a fleet to maintain their principle, and were to act in concert. These parties were, besides Russia, which announced the system to the powers at war, and invited other neutrals to coöperation, Denmark, Sweden, the Dutch provinces, Prussia, Austria, Portugal, and Naples. Two of the belligerents, France and Spain, concurred, but the other, England, replied that she stood by the law of nations and her treaties. England had reason to complain of this league, because some of the parties, then at peace with her,-Sweden and Denmark,—were at the time held by treaty with her to just the contrary principle; while others had even punished neutral ships for what they now claimed to be a neutral right. The first armed neutrality did little more than announce a principle, for no collision took place between them and Great Britain; but it formed an epoch, because in no previous arrangement between Christian states had the rule, "free ships, free goods,” been separated from the opposite, "unfree or hostile ships, hostile goods." In the peace of Versailles, which in 1783 terminated the war between England and France growing out of our revolution, the two powers returned to the stipulations of the peace of Utrecht which have been mentioned above.

In the opening years of the French revolution England recovered her influence over the powers of Europe, and several of them abandoned or suspended the rule for which in great measure, the armed neutrality was formed. And the national convention of France, in 1793, decreed that enemy's goods on board neutral vessels, but not the vessels themselves, should be lawful prize, and that freight should be paid to the captor.

The United States, in treaties with foreign powers, have Treaties of the generally aimed to extend the rights of neutral United States. carriers as far as possible. In some conventions, however, as in that with Spain in 1819, with Columbia in 1824, with Central America in 1825, a somewhat cumbrous rule of reciprocity has been followed, namely, that free ships

shall make goods free, only so far as those powers are concerned which recognize the principle. But in the treaty with England, in 1795 (comp. § 118), it is agreed that the property of enemies on neutral vessels may be taken from them. And in one made with France in 1800, the maxim that hostile ships infect the cargo goes along, as was then not unusual, with the freedom of neutral vessels.

Twenty years after the first armed neutrality a second was formed, to which Russia, the Scandinavian powers Second armed and Prussia were parties; and which derived the neutrality of 1800. pretext for its formation from differences of opinion concerning convoy (§ 191), as well as from certain violations of neutral rights by English cruisers in the case of a Swedish vessel. The platform of this alliance embraced much the same principles as that of 1780, together with new claims concerning convoy. But nothing was gained by it saving some trifling concessions from Great Britain (§ 191, u. s.), while Russia, Denmark and Sweden, ere long gave in their adherence to the English views of neutral liabilities.

$ 175.

During the years between 1814 and 1854, which were disturbed by no important European war, the rules Rules of the peace of war respecting neutral trade were of no im- of Paris in 1856. mediate importance. On the breaking out of the short but important Crimean war, notice was given by Great Britain and France, that for the present the commerce of neutrals with Russia would not be subjected to the strict operation of the rights of war as commonly understood.* At the peace of

* The concurrent declarations of England and France in their English dress were as follows, under date of March 28-29, 1854.

"Her Majesty, the Queen of the United Kingdom of Great Britain and Ireland, having been compelled to take up arms in support of an ally, is desirous of rendering the war as little onerous as possible to the powers with whom she remains at peace. "To preserve the commerce of neutrals from all unnecessary obstruction, Her Majesty is willing for the present to waive a part of the belligerent rights appertaining to her by the law of nations.

"It is impossible for Her Majesty to forego the exercise of her right of seizing

Paris in 1856, the principles foreshadowed in the declaration of the belligerents, which appear in the note below, were embodied in a declaration to which all the parties to the treaty subscribed. We have often spoken of these declarations, which form an epoch in the history of international law, but we here insert them in full, although but one of them refers to our present subject.

1. Privateering is and remains abolished. (§ 122.)

2. The neutral flag covers enemy's goods, with the exception of contraband of war.

3. Neutral goods, with the exception of contraband of war, are not liable to capture under an enemy's flag.

4. Blockades, in order to be binding, must be effective; that is to say, maintained by a force sufficient really to prevent access to the coast of an enemy.

Other powers were to be invited to accede to these articles, but only in solidarity and not separately. The third and fourth being already received by Great Britain, the abandonment of privateering must be regarded as her motive for waiving her old and fixed doctrine in regard to the liability to capture of hostile goods on board a neutral vessel. The minor powers of Europe, whose interests lie on the side of neutral privileges, have already acceded or are likely to accede to this declaration. The negative reply of the United States to an invitation to do the same, with its reasons, has been already given in § 122. If the larger exemption of all innocent private property from the liabilities of war, to which the United States offers to be a party, should become incorporated in the law of articles contraband of war, and of preventing neutrals from bearing the enemy's despatches, and she must maintain the right of a belligerent to prevent neutrals from breaking any effective blockade, which may be established with an adequate force against the enemy's forts, harbors or coasts.

"But Her Majesty will waive the right of seizing enemy's property, laden on board a neutral vessel, unless it be contraband of war.

"It is not Her Majesty's intention to claim the confiscation of neutral property, not being contraband of war, found on board enemy's ships, and Her Majesty further declares that, being anxious to lessen as much as possible the evils of war, and to restrict its operations to the regularly organized forces of the country, it is not her present intention to issue letters of marque for the commissions of privateers."