tain articles called contraband of war. The almost unanimous authority of elementary writers, of prize ordinances, and of

seizure in neutral vessels, but subjected the rest of the cargo, as well as the vessel, to be confiscated. In 1744, the ordinance of 1681 was so far modified that the carrying of enemy's goods did not confiscate the neutral vessel or the rest of the cargo, but enemy's goods, as well as articles of the produce and manufacture of the enemy's country, in neutral vessels, were still liable to confiscation.

The treaty of February 6, 1778, between the United States and France, adopting the principle free ships free goods, was extended by an ordinance of July 26, 1778, to all neutrals, but it contained a provision for returning to the old law, if the enemies of France did not recognize the same rule, and the neutral powers suffered it to be violated. The ordinance was in fact suspended, with respect to the United Provinces, from 14th January, 1779, to 22d April, 1780. As the ordinance of 1681 governed in those cases, for which that of 1778 had made no provision, neutral goods, on board of enemy ships continued to be subject to confiscation. The principle that free ships make free goods has, since the American war, been the generally recognized rule of French maritime law, though it was, not unfrequently, violated by the revolutionary governments. The national assembly, by a decree of 14th February, 1793, continued in force the existing laws as to prizes, until otherwise ordered, though by a decree of May 9, of the same year, in consequence of the course of the British government, enemy's property on board of neutral vessels was made liable to confiscation. From the operation of this order the United States were, on the 1st of July, declared to be excepted on account of their treaty of 1778, as were likewise, subsequently, Sweden and Denmark, and all others who had treaties with France consecrating the rights of the neutral flag. The Government of the Directory considered the treaty of 1794, between the United States and Great Britain, as a hostile act, on the part of America, towards France, and taking advantage of one of the articles of the treaty of 1778, by which it was declared that any favors granted by the one party to a foreign nation should become common to the other, it was declared by the decree of 12 Ventose, year 5, (2 March, 1797,) that the French had acquired by reason of the treaty with England, the right of taking enemy's property in American vessels. The United States, on their part, by an act of Congress of July 7, 1798, declared themselves, in consequence of the violation of the existing treaties by France, and her refusal to make reparations for injuries, or to negotiate respecting them, freed from their stipulations. After some acts of reprisal, authorized by the laws of the United States, the provision respecting "free ships free goods," as contained in the treaty of 1778, was renewed in the treaty of 1800, with a declaration, at the time of the exchange of ratifications, on which the claims of American citizens on their own government for spoliations anterior to its date are founded, of a renunciation of the indemnities mutually due or claimed growing out of the preceding treaties. A law of 29 Nivose, year 6, (18 January, 1798,) declared good prize every neutral vessel laden with enemy's goods, coming from England or her possessions. This was abrogated by the law of 23 Frimaire, year 8, (14 December, 1799,) and a decree was issued on 20th December, 1799, after the accession of Bonaparte, as First Consul, restoring the laws and usages of the monarchy, as they were in

treaties, agrees to enumerate among these all warlike instruments, or materials by their own nature fit to be used in war.

1778, in regard to neutrals. The report of the Minister of Foreign Affairs to the Emperor Napoleon, of March 10, 1812, commences by declaring that the maritime rights of neutrals were solemnly recognized by the treaty of Utrecht, which, it assumes, had become the common law of nations. That the flag covers the property, that goods under a neutral flag are neutral, and that goods under the enemy's flag are enemy's goods, are among the principles recited.

The disregard by England and France of all international rights, from the rupture consequent on the peace of Amiens to the end of the general European war in 1815, by orders and decrees professedly retaliatory of each other, and which sacrificed all neutral powers to their conflicting belligerent pretensions, have been disavowed by both, as constituting precedents for the future conduct of nations. So far as England is concerned, all claims of the United States for indemnity were merged in the war of 1812, induced by a violation of our neutral rights both as regards persons and property; while, in the case of France, as well as of Spain, Denmark, and Naples, whose illegal edicts were, in general, based on those of France, adequate indemnities were paid to the American government, under conventions to that effect, and distributed to the citizens aggrieved. Turkey, the ally or protegée in the present contest of England and France, has done much to vindicate a claim to be received within the pale of international law, by the respect which she has ever evinced for the immunity of the flag. The other maritime powers of Europe have, especially since the armed neutrality of 1780, to which most of them became parties, conformed their internal ordinances, when not under the controlling influence of the dominant States, to the principles, so generally adopted in their commercial conventions. Russia, during the exceptional period of the French Revolution, especially in 1793 and 1801, deviated widely from that system, of which it was the glory of Catharine II. to have been the champion, and which is now sanctioned, and even extended beyond what was established in the respective conventions of armed neutrality, by her great belligerent adversaries. See Hautefeuille, Droit des Nations Neutres, tom. iii. pp. 254279. Martens, Recueil de Traités, Supplement, tom. v. p. 530. Ortolan, Diplomatie de la Mer, liv. iii. ch. 5, t. ii. p. 140. Annual Reg. 1800, p. 55. United States Statutes at Large, vol. i. p. 578. Id. vol. viii. pp. 26, 192. 19 Cong. 1 Sess. Senate, No. 102, Ex. Doc.

Cong. Doc.

Though following England in the recognition by their executive government, as well as by their tribunals of a different principle, as the rule of international law, independently of conventional arrangements, the United States, who, as belligerents, in 1781, declared their adhesion to the first armed neutrality, have always endeavored to incorporate the principle of free ships free goods in their treaties. This was done in those with France of 1778 and 1800, (neither of which is now in force,) with the United Provinces in 1782, with Sweden in 1783, 1816, and 1827, with Prussia in 1785; and although the rule was suspended in the treaty of 1799 with the last power, it was revived in that of 1828. United States Statutes at Large, vol. viii., passim.

In no case has a treaty been concluded by the United States, sustaining a dif

Beyond these, there is some difficulty in reconciling the conflicting authorities derived from the opinions of public jurists, the

ferent principle, except the one of 1794, with England, already noticed, and which expired before the war of 1812, while in the next year, 1795, a treaty wa negotiated with Spain, making free ships free goods, without including the usual accompanying provision, that enemy ships make enemy goods. The embarrass ments, however, arising from a different rule, as to the two belligerents, when one of the contracting parties is at war with a third power, and the other neutral, induced, in 1819, a change in the treaty to the effect, that the flag of the neutral should only cover the property of an enemy, whose government acknowledged the principle. The rule thus modified has since been applied in our treaties with the other American States, viz., in that of 1824 with Columbia, of 1828 with Brazil, of 1825 with Central America, of 1832 with Chili, of 1831 with Mexico, of 1833 with Peru-Bolivia, and of 1836 with Venezuela. United States Statutes at Large, vol. viii. pp. 262, 312, 393, 328, 437, 490, 472.

Recurring to their respective systems, as understood previous to the present war, it is very evident, that if two nations situated like England and France, one possessing the largest military marine in the world, and the other a navy only inferior to that of its ally, were as co-belligerents, each to maintain its own peculiar principles of maritime law, neutral commerce must altogether cease. Neutral property, which England would not condemn for being found in an enemy's vessel, would be good prize to the French cruiser; while the neutral ship, whose flag was a protection against France, would be subject to be searched by English officers for enemy's property, the mere suspicion of having which on board might induce the sending of the vessel into an English port, and thus breaking up a voyage, for which any allowance, either as freight or for damages, would be a very inadequate indemnity. A compromise of principles was necessary to the coöperation of the navies of the allies. And this, instead of further aggravating the difficulties to which war always subjects neutrals, has been effected by an abandonment of the obnoxious pretensions of England, as a consideration for obtaining from France additional concessions, on her part.

The Ministers of England and France communicated to the Secretary of State of the United States, on the 21st April, 1854, the declaration made in the same terms by their governments, on occasion of the commencement of the war, the preceding month, against Russia. That of England was as follows:

"DECLARATION OF THE QUEEN.
"Declaration.

"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 articles contraband of war, and of preventing neutrals from bearing the enemy's

fluctuating usage among nations, and the texts of various conventions designed to give to that usage the fixed form of positive

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 enemies' 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 commissioning of privateers.

"Westminster, March 28, 1854."

Mr. Marcy, in acknowledging, on the 28th of April, the note of Mr. Crampton, with its inclosure, says:

"The undersigned has submitted those communications to the President, and received his direction to express to her Majesty's government his satisfaction that the principle that free ships make free goods, which the United States have so long and so strenuously contended for as a neutral right, and in which some of the leading powers of Europe have concurred, is to have a qualified sanction by the practical observance of it in the present war by both Great Britain and France-two of the most powerful nations of Europe.

"Notwithstanding the sincere gratification which her Majesty's declaration has given to the President, it would have been enhanced if the rule alluded to had been announced as one which would be observed not only in the present, but in every future war in which Great Britain shall be a party. The unconditional sanction of this rule by the British and French governments, together with the practical observance of it in the present war, would cause it to be henceforth recognized throughout the civilized world as a general principle of international law. This government, from its very commencement, has labored for its recognition as a neutral right. It has incorporated it in many of its treaties with foreign powers. France, Russia, Prussia, and other nations, have, in various ways, fully concurred with the United States in regarding it as a sound and salutary principle, in all respects proper to be incorporated in the law of nations.

"The same consideration which has induced her Britannic Majesty, in concurrence with the Emperor of the French, to present it as a concession in the present war, the desire to preserve the commerce of neutrals from all unnecessary obstruction,' will, it is presumed, have equal weight with the belligerents in any future war, and satisfy them that the claims of the principal maritime powers, while neutral, to have it recognized as a rule of international law, are well founded, and should be no longer contested.

"To settle the principle that free ships make free goods, except articles contraband of war, and to prevent it from being called again in question from any quarter, or under any circumstances, the United States are desirous to unite with

law. Grotius, in considering this subject, makes a distinction between those things which are useful only for the purposes of

other powers in a declaration that it it shall be observed by each, hereafter, as a rule of international law."

An answer, in the same terms, was addressed to the Count de Sartiges.

On the 9th of May, 1854, Mr. Crampton transmitted to Mr. Marcy the two orders in council of the 15th of April, before referred to. Supra, pp. 372, 390. One of them enlarges the time for the departure of Russian vessels; the other, after reciting and confirming the royal declaration of the 28th of March, still further extends the privileges accorded to neutrals:

"It is this day ordered, by and with the advice of her privy council, that all vessels under a neutral or friendly flag, being neutral or friendly property, shall be permitted to import into any port or place in her Majesty's dominions all goods and merchandise, whatsoever, to whomsoever the same may belong; and to export from any port or place in her Majesty's dominions, to any port, not blockaded, any cargo or goods not being contraband of war, or not requiring a special permission, to whomsoever the same may belong.

"And her Majesty is further pleased, by and with the advice of her privy council, to order, and it is hereby further ordered, that, save and except only as aforesaid, all the subjects of her Majesty and the subjects or citizens of any neutral or friendly State shall and may, during and notwithstanding the present hostilities with Russia, freely trade with all ports and places, wheresoever situate, which shall not be in a state of blockade, save and except that no British vessel shall, under any circumstances whatsoever, either under or by virtue of this order or otherwise, be permitted or empowered to enter or communicate with any port or place which shall belong to or be in the possession or occupation of her Majesty's enemies." Cong. Doc. 33 Cong. 1st Sess. H. of R., Ex. Doc. No. 103.

The articles requiring a special permission to export are confined to arms, munitions, and marine machinery, which may be available in war, and the total prohibition to export them, contained in the order in council of 18th of February, 1854, in anticipation of hostilities, was subsequently modified, as is hereafter stated. See infra, § 24, note.

Whatever doubts may have existed as to the permanent character of the modifications in the principles of international law, adopted, during the present war, by England, would seem to be removed by the subsequent explanations given in Parliament, by a minister of the crown, (Sir W. Molesworth,) speaking avowedly in behalf of the government. In a debate, on the 4th of July, in answer to Mr. J. Phillimore, who had moved a resolution that, however, from the peculiar circumstances of this war, a relaxation of the principle that the goods of an enemy in the ship of a friend are lawful prize may be justifiable, to renounce or surrender the right would be inconsistent with the security and honor of the country.

Sir W. Molesworth said, the resolution raised two distinct questions - one a practical question of political expediency; the other a theoretical question of international law, as to the rights of the subjects of neutral States, with reference to belligerents. The expediency of relaxing the principles that the goods of an