Declaration of Paris of 1856. 66 the Plenipotentiaries of the Seven Powers assembled in Congress at Paris on 16 April 185651, sanctions the principle, that the neutral flag covers the vessel and its cargo, although the latter may be enemy's property, provided that it be not contraband of war. Le pavillon neutre couvre la marchandise ennemie, à l'exception de la contrebande de guerre." By this declaration the Seven Powers have bound themselves in regard to one another not to act upon the Rule of the Consolato del Mare, under which enemy's property is good prize, if found on board a neutral vessel. There is, however, nothing in this departure from the rule of the Common Law, which is contrary to Natural Right. The doctrine of "Free Ship, Free Goods," taken absolutely and disconnected from the correlative doctrine of " Enemy Ship, Enemy Goods," implies nothing more, than that the Belligerent has consented to waive the exercise of his Natural Right to take possession of the property of his enemy, if it should be found on board of a neutral ship. On the other hand the Declaration of the Congress of Paris has affirmed the Rule of the Consolato del Mare in regard to the immunity of neutral property found on board of an enemy's ship, provided it be not contraband of war. "La marchandise neutre, à l'exception de la contrebande de guerre, n'est pas saisissable sous pavillon ennemi." The Declaration of Paris may therefore be regarded as a step in a perfectly safe direction, involving no vicious principle at variance with Natural Right. Mr. Wheaton 52 has well observed, antecedently to the Declaration of Paris, that the principle of "Free Ship, Free Goods," is perfectly reconcilable with the Rule of the Consolato del Mare as to neutral goods being 51 Martens, N. R. Général, T. XV. p. 792. 52 Elements of International Law, Pt. IV. c. 3. § 22. free, although found on board of an enemy's ship. Speaking of the stipulation that neutral bottoms shall make neutral goods, he remarks that it is a concession made by the belligerent to the neutral, and gives to the neutral flag a capacity not given to it by the primitive Law of Nations. On the other hand, the stipulation subjecting neutral property found in the vessel of an enemy to confiscation, as prize of war, is a concession made by the neutral to the belligerent, and takes from the neutral a privilege he possessed under the Law of Nations; but neither reason nor usage renders these two concessions so indissoluble, that the one cannot exist without the other 53 " § 86. It was recited in the Declaration of Paris (16 April 1856) that the principles of Maritime Law, adopted by the parties to that Declaration, should 53 Cf. the Nereide, 9 Cranch's Reports, p. 419. 54 The Text of the Declaration is as follows. Considering that maritime law in time of war has long been the subject of deplorable disputes; That the uncertainty of the law and of the duties in such a matter gives rise to differences of opinion between neutrals and belligerents, which occasion serious difficulties and even conflicts; That it is consequently advantageous to establish an uniform doctrine on so important a point; That the Plenipotentiaries assembled in Congress at Paris cannot better respond to the intentions by which their Governments are animated, than by seeking to introduce into international relations fixed principles in this respect. The above-mentioned plenipotentiaries (of Great Britain, Austria, France, Prussia, Russia, Sardinia, and Turkey, assembled in Congress at Paris April 16, 1856) being duly authorised, resolved to concert amongst themselves as to the means of attaining this object, and having come to an agreement, have adopted the following solemn declaration :— 1. Privateering is and remains abolished. 2. The neutral flag covers enemy's goods, with the exception of contraband of war. 3. Neutral goods, with the of the enemy. Parliamen- not be obligatory upon any States which should not accede to that Declaration; and further, that the Governments of the States, which had joined in the Declaration, should bring it to the knowledge of the States, which had not taken part in the Congress of Paris, and invite them to accede to it. In consequence of such invitation all the European Powers, with the exception of Spain, have acceded to the four articles of the Declaration 55. Amongst the States of the Western Hemisphere, the Argentine Confederation, Brazil, Chili, Ecuador, New Granada, Guatemala, Hayti, Peru, and Uruguay, have given Mexico and in their adhesion to all the articles. Mexico, on the Spain. other hand, following the example of Spain, has announced her intention of adopting, as part of her own legislation, the principles embodied in the last three articles, but has declined to accede to the Declaration itself, on account of the first article, which declares Privateering to be abolished. The United States of America have in a similar manner declared 55 A list of those Powers, which had acceded up to 1858, will be found in Martens, N. R. Gén. Tom. XVI. p. 641. But a more complete list is set out in the instructions sent from the Foreign Office by Earl Russell to Lord Lyons at Washington on 18 May 1861, which were laid before the Congress of the United States in the month of November 1861, with the President's Mes sage, and subsequently presented to both Houses of Parliament in 1862 as Papers, North America, No. 2, p. III. The latter list is as follows: Baden, Bavaria, Belgium, Bremen, Brazil, Duchy of Brunswick, Chili, the Argentine Confederation, the Germanic Con federation, Denmark, the two Sicilies, the Republic of the Equator, the Roman States, Greece, Guatemala, Hayti, Hamburg, Hanover, the two Hesses, Lubeck, Mecklenburg-Strelitz, Mecklenburg-Schwerin, Nassau, Oldenburg, Parma, Holland, Peru, Portugal, Saxony, Saxe-Altenburg, Saxe-Coburg-Gotha, SaxeMeiningen, Saxe-Weimar, Sweden, Switzerland, Tuscany, Wurtemberg, Anhalt-Dessau, Modena, New Granada, Uruguay. This is probably the same list, which was put forth by the French Government in a Memorandum from the Minister of Foreign Affairs, dated 12 June 1858. States and of America. their intention of observing the last three articles, United but have declined to accede to the Declaration itself, Confede unless the other Powers would agree to adopt an rate States additional provision, to the effect "that the private property of the subjects or citizens of a belligerent on the High Seas shall be exempted from seizure by the public armed vessels of the other belligerent, except it be contraband." The Confederate States of America, by a resolution of 13 August 1861, have declared their intention of governing their intercourse with the rest of mankind in conformity with the last three articles, whilst they have affirmed the principle, "that we maintain the right of Privateering as it has been long established by the practice, and recognised by the Law of Nations." The result is that the exercise of belligerent Right upon the High Seas on the part of those Powers, which are parties to the Declaration of Paris, is governed, as respects one another, by the principles affirmed in that Declaration, but as respects the United and the Confederate States of America, Spain, and Mexico, by the Common Law of Nations, unless there be any preexisting treatyengagements with those Powers to the contrary. The plenipotentiaries of the Powers assembled in Congress at Paris on the day on which the Declaration was signed, placed on record in a Protocol of that date Protocol 56 Protocol No. 24. Sur la proposition de M. le Comte Walewski et reconnoissant qu'il est de l'intérêt commun de maintenir l'indivisibilité des quatre principes mentionnés à la Déclaration signée en ce jour, MM. les Plénipotentiaires conviennent que les Puissances qui l'ont signée, ou celles qui y auront accédé, ne pourront entrer à l'avenir sur l'application du droit maritime 56 en temps de guerre, en aucun ar- No. 24. Territorial Hübner. their agreement, that neither the original parties to the Declaration, nor the Powers that should accede to it, can enter thereafter into any arrangement in regard to the application of Maritime Law in time of war, which does not at the same time rest upon the four principles which are the subject of the Declaration. § 87. Hübner, in his work upon the seizure of theory of neutral ships published in 1759, had advocated the adoption of the principle of Free Ship Free Goods, concurrently with the maintenance of the rule of the Consolato del Mare, that neutral merchandise should be exempt from capture although found on board an enemy's vessel. His argument in support of the former principle rested upon two propositions, that neutral ships are neutral territory 57 within which enemy's property is sacred, and that commerce ought to be as free to neutrals in time of war as in time of peace, seeing that neutrals are not parties Klüber. to the contention. In the same spirit Klüber 58 and Martens both rest the principle of Free Ship Free Goods upon the territoriality of merchant vessels on the high seas. The former writer says, "Upon the ocean, every ship is considered extraterritorial in regard to all foreign Nations. chant-vessel ought to be considered as a floating colony of its State. In consequence, no belligerent Power ought to allow itself to visit a neutral ship, 57 Or les Vaisseaux neutres sont sans contredit des lieux neutres; d'où il s'ensuit que quand ils seraient incontestablement chargés pour le compte de l'ennemi, les belligérans n'ont aucun droit de les inquiéter au sujet de leurs cargaisons, puisqu'il revient au même d'enlever des effets d'un navire neutre, ou de A mer les enlever sur un territoire neutre." De la Saisie des Batimens neutres ou du Droit qu'ont les Nations belligérantes d'arrêter les navires des peuples neutres. La Haye, 1759. 58 Droit des Gens. Part II. Tit. I. c. 2. § 299. 59 Précis de Droit des Gens. L. VIII. c. 7. § 316. |