Development of the Neutral Theory among the Maritime States of Europe. In the history of neutrality a marked difference in development will be found to exist between the maritime and non-maritime states of the civilized world. This difference is due, in part, to the powerful influence exerted by commercial intercourse in the development of certain nations, and, in part, to the fact that the theory of neutral obligation found its first practical application in the shape of an immunity from capture accorded, in time of war, to the ships and goods of non-belligerents-or neutrals, as they would now be called-on the high seas. Indeed, the rules of neutrality on land, as will presently be seen, are of much more recent development, and did not come into existence until several centuries after the exemption of neutral goods from capture on the sea had received general international recognition. For this reason it will be proper to discuss, first, the development of the theory of neutrality among the maritime states of Europe.

The theory of neutrality is based upon, and deduced from, the conception of a number of sovereign states, or political communities, each enjoying a separate existence, and each recognizing the separate and independent existence of every other. Such conditions were fulfilled by the Mediterranean cities that participated in the revival of commerce towards the close of the Dark Ages; and it was among them that the modern theory of neutrality was developed. The first conception of neutral right to acquire general recognition among them seems to have consisted in the idea that, at the outbreak of war between any two cities, the commerce of the rest, who remained friendly to the belligerents, since it in no way concerned the hostile cities, should undergo the least possible interruption. Out of this immunity grew the idea of the exemption of neutral or friendly goods from capture in time of

war.

These cities were either independent communities or were situated in separate states, and commercial relations had become so firmly established among them by the close of the eleventh century as to warrant the preparation of a code of

sea laws containing their common maritime usages. The earliest of these codes, the "Consolato del Mare," recognized the distinction between the property of friends and enemies in war, and declared that the former was exempt from capture and confiscation, even when found on an enemy's vessel. If such property were delivered at its destination, freight was due to the belligerent captor who effected the delivery. Similar provisions were contained in the later sea laws; indeed, so long as maritime commerce was controlled by the cities of southern and western Europe, the treatment of neutral property at sea was marked by extreme liberality.

The cities that were identified with the revival of commerce engaged in such pursuits for purely mercenary reasons. They were rivals in commerce only, and none of them aspired to territorial, as distinguished from commercial, dominion. Their commercial rivalry was keen, however, and some of them asserted claims to the exclusive control of certain waters for purposes of trade. Conflicts of interest thus arose, which at times resulted in war; but as their commercial interests were, on the whole, of the first importance, their relations were more generally peaceful than hostile. Upon the outbreak of war the greater number of cities found it to be to their interest to refrain from participation in its operations, and to continue their friendly relations with both belligerents. The relations of the non-belligerent, or neutral, cities with each other underwent no change. They were at peace, and simply maintained, without interruption, their ordinary commercial intercourse. As the greater number of these cities were usually at peace, it is easy to see that it was to the general interest that their commercial relations should suffer, during war, the least possible interruption. The necessity of combining to protect their merchant vessels from the depredations of pirates must have suggested to them, at a relatively early date, the desirability of similar concerted action to secure a like immunity from acts of belligerency, and to compel respect for their neutral rights.'

1 Hall, pp. 576-579; IV Calvo, §§ 2495-2500; Lawrence, Int. Law. § 244; I Hautefeuille, pp. 195–239.

The Rule of the "Consolato del Mare." Out of this state of international relations grew the rule of the "Consolato del Mare," that enemy goods were liable to capture, and neutral goods were exempt from capture, wherever found. This rule was generally accepted by the commercial cities, and, later, by the European powers. With occasional interruptions, due in great part to treaty stipulations, it continued to be the most generally accepted rule upon the subject of the liability of property to capture at sea, until the adoption of the more liberal rule of the Declaration of Paris, in 1856.'

General Acceptance of the Rule. England adopted the rule at the organization of its admiralty courts during the reign of Edward III., and has consistently maintained it during her subsequent history. In a small number of treaties, made during the seventeenth and eighteenth centuries, the English Government conceded the principle that free ships make free goods; but these concessions were of a temporary character, and in nearly all cases were terminated by a positive disavowal of the milder rule. France, after observing the rule of the "Consolato" for nearly five hundred years, repudiated it in the Maritime Ordinances of 1681. By that instrument the rule of capture was stated to be that the goods of an enemy in a neutral vessel and the goods of a friend in an enemy's vessel were alike liable to capture, thus establishing the rule that enemy ships make enemy goods. This continued to be the practice of France, subject to some modification in her conventional law, until the Declaration of Paris. The practice of Spain, during the period of her maritime supremacy, was similarly severe.

Policy of the United States. The policy of the United States, as indicated in the decisions of the Supreme Court, has been substantially the same as that of England. “The two distinct propositions-1. That enemy's goods found on board a neutral ship may lawfully be seized as prize of war,

Consolato del Mare, chap. 273.

$$ 1-9; Manning, pp. 279-287; Hosack, pp. 164-167; Ortolan, liv. ii.

pp. 96-103; IV Calvo, § 2495; Heffter, § 152.

and, 2. That the goods of à neutral found on board of an enemy's vessel are to be restored-have also been explicitly incorporated into the jurisprudence of the United States, and declared by the Supreme Court to be founded on the law of nations. The rule, it was observed by the court, rested on the simple and intelligible principle that war gave a full right to capture the goods of an enemy, but gave no right to capture the goods of a friend. The neutral flag constituted no protection to enemy's property, and the belligerent flag communicated no hostile character to neutral property. The character of the property depended upon the fact of ownership, and not upon the character of the vehicle in which it was found. Nations, indeed, had changed this simple and natural principle of public law by conventions between themselves, in whole or in part, as they believed it to be for their interest; but the one proposition, that free ships should make free goods, did not necessarily imply the converse proposition, that enemy's ships should make enemy's goods. If a treaty established the one proposition, and was silent as to the other, the other stood precisely as if there had been no stipulation, and upon the ancient rule."'

The policy of the different departments of the United States Government upon the question of maritime capture has not been the same. The courts of the United States, being to some extent controlled by the English precedents in prize cases, have, in the main, followed the English rule, as expressed in the "Consolato del Mare." The political departments, on the other hand, have constantly endeavored to secure the greatest possible immunity from capture for private property at sea, and to that end have endeavored to obtain, by treaty and otherwise, international consent, not only to the rule that free ships make free goods, but that all private property at sea, not contraband of war, should be exempt from capture and confiscation in time of war."

1 1 The Nereide, 9 Cranch, 388, 419; III Phillimore, pp. 317, 318; I Kent, Pp. 124, 125.

2

I Kent, pp. 127-135; Boyd's

Wheaton, § 4391; II Halleck, pp. 308-312; IV Calvo, § 2495.

3 President Pierce, Second Annual Message, 1854; Marcy to Baron

The Principle of Free Ships, Free Goods. The principle that free ships make free goods was first recognized by Holland during the early part of the seventeenth century, and was the result of the peculiar situation of that state as a European power. Its military strength on land was far less in amount than that of the great states by which it was surrounded, and was never more than sufficient to the task of securing its independent political existence. The contrary, however, was the case at sea, where the maritime power of the republic was exceeded, if at all, by that of England alone. The maintenance of its position as a maritime and commercial power thus became a matter of the first importance, and was so recognized by the succession of able statesmen who directed the state policy of the United Provinces during the seventeenth and eighteenth centuries. Having but little military strength, it was desirable that Holland should remain neutral in all European wars. It was still more desirable, however, that its immense carrying trade should be exempt from the effects of war But this exemption could only be obtained by securing the adoption of the rule that free ships made free goods, as the rule then prevailing was that of the "Consolato del Mare," by which the ownership of property determined its liability to capture.

at sea.

For the adoption of a new rule on the subject of maritime capture the general consent of nations was necessary, and that consent could only be obtained by treaty stipulations. The efforts of the Dutch Government were therefore directed to that end, and, as a result, a number of treaties were negotiated in which the rule of free ships, free goods, was recognized, and the liability to capture was determined by the nationality of the vessel, and not by the ownership of the goods, as in the ancient rules. As Holland was more generally neutral than

Gerolt, Dec. 9, 1854; III Dig. Int. Law, § 385. The principle of free ships, free goods, was incorporated in the treaties between the United States and France in 1788 and 1800;

with the United Provinces in 1782; with Sweden in 1783, 1816, and 1827; with Prussia in 1785 and 1828; with Spain in 1795.