free goods, does not necessarily imply the converse proposition, that enemy ships make enemy goods. The stipulation, that neutral bottoms shall make neutral goods, is a concession made by the belli

the former, that no evidence was furnished the British Government that any of them were British subjects who had unlawfully enlisted in the Confederate service, or foreigners who violated British law, or were subject to extradition; and that the government could not detain them, or refuse them asylum, on the suspicion or probability, however great, that they might afterwards violate the neutrality laws of England. As to the sailing of the Shenandoah from England, she sailed long before any intimation had been given to the government of any suspicions against her. (She sailed Oct. 8, and Mr. Adams's letter was Nov. 10.) Moreover, the British laws do not prohibit the sailing of unarmed merchant-vessels, as the Shenandoah was when she sailed, nor the departure of British subjects from England, as individuals, to join either belligerent service; and the British Government is not responsible for the fact that such persons join such a vessel in a foreign port, and that she gets her armament there, even if from another British merchant-vessel by which it is taken out as contraband merchandise, and there begins her cruise.

As to the asylum and supplies afforded to the Shenandoah in British ports, they were the necessary consequences of the recognition of the belligerency of the Confederates. Their vessels must receive the privileges of all public ships of war. If the Shenandoah used these supplies, obtained while her government existed, in hostilities after it expired, the British Government could not be responsible.

Lord Clarendon refers to the American precedents during the South American wars, and says, that, although the vessels cruising under the patriot flags against Spanish and Portuguese commerce were proved often, by legal testimony in court, to have been armed and equipped in ports of the United States, yet the United States did not exclude them from the privileges of its ports.

As to the Confederate agency in England, his lordship replied that each belligerent could and did have agencies there to procure all materials contraband of war; and, if the Confederate agents went beyond that privilege, they did it secretly, and with artifices sufficient to prevent seasonable discovery.

Mr. Adams to Lord Clarendon, Nov. 18, 1865 (in reply to Lord Russell's, of Nov. 2, 1865), disclaims the position that a neutral is liable for the consequences of a violation of its neutrality by a belligerent, without regard to the circumstances attending each case; and repeats the argument, that Great Britain's liability arises from the circumstances attending the individual cases, beyond and irrespective of the general objection to its recognition of belligerency. His proposition is, that the neutral is responsible when it fails to exercise the means in its power. He re-examines the Portuguese question, and states its history for the purpose of showing-(1) That the United States instantly added to its statutes new clauses, at the suggestion of Portugal, and to the entire satisfaction of that power; (2) That it took the responsibility of suppressing by force a base of hostile operations against Portuguese commerce beyond the jurisdiction of the United States; (3) That it did prosecute both South Americans and citizens of the United States in considerable numbers, and whenever sufficient evidence was known, and did restore, in great numbers, prizes made by vessels illegally fitted out; and (4) That these measures were effective, so that but fow causes of complaint arose after 1820. As to amendments to the British acts, Mr. Adams says that his proposal was not to adopt the American amendments of 1818, or any other particular amendment, but only that proper amendments be made, in such way as the British Government should itself suggest; and that Lord Russell's refusal

gerent 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 was not a refusal of any particular amendment, but a refusal to do any thing whatever on the subject. To such a refusal, it was no defence to say, if it could be shown to be true, that the American clauses of 1818 were not effective, or to make the general declaration that the government is "not bound to go on making new laws ad infinitum because new occasions arise." During this very war, Great Britain had suggested to the Canadian Parliament to make new laws to preserve its neutrality. It is the arising of occasions that shows the need of new laws, and furnishes one of the reasons for permanent legislatures. He contrasts the rapidity and vigor with which the United States acted on the complaint of Sir John Crampton, in 1855, with the action of England in the cases drawn to its attention during this war. In answer to the suggestion of Lord Russell's last letter, that now, after the close of the war, both countries should unite on some amendment of their neutrality law, Mr. Adams accepts the proposal as an admission that the British act needs amendment; and, denying that the American does need amendment, replies that his lordship could hardly expect that the American people, after suffering greatly from the refusal to amend the British acts during the existence of the war, or to make reparation for the consequences of their now-admitted inefficiency, would be satisfied by a proposal to make new laws, mutually, which should give Great Britain hereafter a protection she had refused to furnish to us in our need. Mr. Adams to Earl of Clarendon, Nov. 21, 1865, gives the refusal of the United States Government to agree upon a commission to settle particular claims between the two governments arising out of the war, so long as Great Britain, for the reason she assigns, refuses to submit the great claims the United States is now urging.

Lord Clarendon to Mr. Adams, Dec. 2, 1865, declines to continue the correspondence, as he considers the subject to be exhausted by the letters on the two sides, and fears its continuance might introduce acrimony into the relations between the countries, whose mutual friendship it is so important to preserve.

The summary of this memorable correspondence may be stated thus: The United States claims reparation from Great Britain for injuries done to her commerce by cruisers under the rebel flag, for the following reasons: (1) Because Great Britain made a precipitate and unwarranted recognition of belligerency of the rebel power, and thereby established in law, and to some extent brought about, in fact, a state of things which made possible and probable the illegal acts of individuals complained of. (2) Because the measures taken by the British Government to prevent the sailing of vessels from British ports, fitted and equipped therein in violation of her neutrality, were tardy and feeble, as well as ineffectual; whether this arose from mistakes of law in the advisers of the crown, or bad faith or incapacity in inferior officials, or from the insufficiency of the Acts of Parliament, being purely an internal question, with which the United States were not bound to deal. (3) Because Great Britain did not seize and detain or disarm these vessels, or refuse them asylum, or otherwise deal with them in such manner as the law of nations authorized her to do, after their fraudulent escape from their original ports. (4) Because the British Government refused even to suggest amendments of her Acts of Parliament in any respect whatever, or to introduce the subject to Parliament, when their inefficiency had been proved, and the government had been requested so to do, not only by the United States, on terms of reciprocity, but by British citizens interested in preserving neutrality. (5) Because the government had neglected or refused to prosecute citizens of the so-called Confederate States who were openly residing in England as agents for that power, and

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 pre-existing law of nations; but notoriously engaged in fitting out vessels in violation of British neutrality, though abundant evidence had been furnished to authorize proceedings. (6) Because, by reason of this course of the British Government, the rebels had been able to set forth and maintain an effective force of steamers cruising against American commerce, having asylum and making repairs and getting coal and supplies in British ports, built, fitted out, armed, and manned in and from England, and never even expecting or pretending to visit a port of the Confederacy, when otherwise they would scarcely have had a single cruiser; the result of which had been a most effective belligerent aid to the rebellion, and the great advantage to England and detriment to the United States of driving from the seas the greater part of the American mercantile marine, heretofore the equal and rival of Great Britain, and transferring the commerce of the world to the British flag.

The British Government replies: (1) That the recognition of belligerency was justifiable and made necessary at the time it was done, and dictated by a duty to the United States as well as to Great Britain; and that the United States gained by it the rights of blockade and search. (2) That the government acted in good faith and with reasonable diligence in enforcing its laws for the preservation of its neutrality; and that, if subordinate officials failed in capacity or diligence in particular cases, their acts or failures being but a part of the entire proceedings otherwise proper and effective, the nation cannot be expected to hold itself responsible for their remote consequences, in the way of making compensation for acts done by belligerents out of its jurisdiction. (3) That the government did seize and prosecute, in her colonial ports, vessels which were charged with being fitted out at home in violation of neutrality; and that she was not bound by the law of nations to refuse asylum to, or seize or disarm, or insist on the disarmament of, vessels afterwards commissioned as public ships of war of a belligerent visiting her ports, on the ground that they had been originally, and before their commissioning as vessels of war, fitted out in her jurisdiction in violation of her neutrality. (4) That the government was not satisfied that the Acts of Parliament had proved inadequate to such an extent, and after so full trial, or that any amendments would be likely to improve them so materially, as to justify the United States in charging the refusal to attempt their amendment as a want of good faith. (5) That the government had judged in good faith, on the advice of competent counsel, whether, in cases suggested, prosecutions against individuals should be instituted. (6) That, if vessels fitted out and despatched from Great Britain ever so clearly in violation of her neutral rights, had fraudulently escaped, without bad faith on the part of the government, Great Britain was not responsible for acts of hostility done by such vessels beyond her jurisdiction. Her duty was fulfilled if she restored any prizes such vessels might bring within her jurisdiction. (7) That it was inconsistent with the dignity and honor of the government to submit to arbitration claims of another government, the decision of which involved a question whether the advisers of the crown had correctly interpreted the law, or the executive officers of the crown had acted with diligence, good judgment, or good faith.

On the subject of the neutrality or foreign enlistment acts of the United States and Great Britain, and the political and judicial course of the two nations in connection with them, see, in addition to the authorities cited in the course of this note, Kent's Comm. i. 115-124. Phillimore's Intern. Law, iii. 211-219, 227-237. Mr. Gibbs's pam

neither reason nor usage renders the two concessions so indissoluble, that the one cannot exist without the other.

It was upon these grounds that the Supreme Court of the United States determined that the treaty of 1795, between them and Spain, which stipulated that free ships should make free goods, did not necessarily imply the converse proposition, that enemy ships should make enemy goods, the treaty being silent as to the latter; and that, consequently, the goods of a Spanish subject, found on board the vessel of an enemy of the United States, were not liable to confiscation as prize of war. And although it was alleged, that the prize law of Spain would subject the property of American citizens to condemnation, when found on board the vessels of her enemy, the court refused to condemn Spanish property, found on board a vessel of their enemy, upon the principle of reciprocity; because the American government had not manifested its will to retaliate upon Spain; and until this will was manifested by some legislative act, the court was bound by the general law of nations constituting a part of the law of the land. (a)

220

tional law

§ 446. The conventional law, in respect to the rule Convennow in question, has fluctuated at different periods, ac- as to free ships free cording to the fluctuating policy and interests of the goods. phlet on the Foreign Enlistment Act (London, 1863). Mr. Bemis's pamphlet on American Neutrality (Boston, 1861), and Letters to the Boston Daily Advertiser of August, 1865. Letters of Historicus to the London Times of March 22, April 24, and Oct. 16, 1865. Earl Russell's Speech of March 23, 1865. Mr. Loring's pamphlet on Neutrality (Boston, 1863). Speech of Sir R. Palmer, of May 13, 1864.] — D. (a) The Nereide, Cranch's Rep. ix. 388.

[22) Not only are the two maxims, - free ships free goods, and hostile ships hostile goods,-separable, but they have no logical connection with each other. The rule which condemns enemy's goods in a neutral vessel, releasing the vessel, and condemns an enemy's ship, releasing its neutral cargo, is, as Heffter says (Europ. Völker. § 162), an application of the maxim, suum cuique. The rule that the cargo found in enemy's ships, not being contraband or engaged in violation of any of the captor's rights of war, is to be examined into on proofs, and to be restored to a neutral who proves his title and right of possession, clear of other causes for condemnation, is now acted upon without question in the prize courts of England and America. So is the rule, in the absence of treaty modifications, that enemy's goods captured at sea are none the less liable to condemnation for being in the custody of a neutral. In the latter case, the question between the captor and the neutral carrier is simply one of the right of possession; and the law of war allows the belligerent to take the possession from the neutral carrier, on such terms, respecting compensation for his vested rights in freight, as national reciprocity shall have established. The capture is a defence to the neutral, if sued by the shipper upon his contract of affreightment. See note 223, infrà, on Free Ships, Free Goods.] — D.

different maritime States of Europe. It has been much more flexible than the consuetudinary law; but there is a great preponderance of modern treaties in favor of the maxim, free ships free goods, sometimes, but not always, connected with the correlative maxim, enemy ships enemy goods; so that it may be said that, for two centuries past, there has been a constant tendency to establish, by compact, the principle, that the neutrality of the ship should exempt the cargo, even if enemy's property, from capture and confiscation as prize of war. The capitulation granted by the Ottoman Porte to Henry IV. of France, in 1604, has commonly been supposed to form the earliest example of a relaxation of the primitive rule of the maritime law of nations, as recognized by the Consolato del Mare, by which the goods of an enemy, found on board the ships of a friend, were liable to capture and confiscation as prize of war. But a more careful examination of this instrument will show, that it was not a reciprocal compact between France and Turkey, intended to establish the more liberal maxim of free ships free goods; but was a gratuitous concession, on the part of the Sultan, of a special privilege, by which the goods of French subjects laden on board the vessels of his enemies, and the goods of his enemies laden on board French vessels, were both exempted from capture by Turkish cruisers. The capitulation expressly declares, art. 10:"Parceque des sujets de la France naviguent sur vaisseaux appartenants à nos ennemis, et les chargent de leurs marchandises, et étant rencontrés, ils sont faits le plus souvent esclaves, et leurs marchandises prises; pour cette cause, nous commandons et voulons qu'à l'avenir, ils ne puissent être pris sous ce prétexte, ni leurs facultés confisquées, à moins qu'ils ne soient trouvés sur vaisseaux en course," etc. Art. 12:"Que les marchandises qui séront chargées sur vaisseaux Français appartenantes aux ennemis de notre Porte, ne puissent être prises sous couleur qu'elles sont de nos dits ennemis, puisque ainsi est nôtre vouloir." (a)

(a) Flassan, Histoire de la Diplomatie Française, tom. ii. p. 226. M. Flassan observes: "C'est a tort qu'on a donné à ces Capitulations le nom de traité, lequel suppose deux parties contractantes stipulant sur leurs intérêts; ici on ne trouve que des concessions de privilèges, et des exemptions de pure libéralité faites par la Porte à la France." In the first English edition of this work, and also in another work more recently published, under the title of "History of the Law of Nations," the author has been misled, by following the authority of Azuni and other compilers, into the erroneous conclusion, that the above capitulation was intended to change the