United States and Prussia of 1828, with the addition of States and the following clause:

Prussia, in the treaty of

"The parties being still desirous, in conformity with 1828. their intention declared in the twelfth article of the said treaty of 1799, to establish between themselves, or in concert with other maritime powers, further provisions to insure just protection and freedom to neutral navigation and commerce, and which may at the same time advance the cause of civilization and humanity, engage again to treat on this subject at some future and convenient period."

The

of the

States con

§ 471. During the war which commenced between the United States and Great Britain in 1812, the prize courts prize courts of the former uniformly enforced the generally acknowl- United edged rule of international law, that enemy's goods in demn eneneutral vessels are liable to capture and confiscation, ex- in neutral cept as to such powers with whom the American government had stipulated by subsisting treaties the contrary rule, that free ships should make free goods.

my's goods

ships.

treaties of

the South

republics, on

§ 472. In their earliest negotiations with the newly The established republics of South America, the United States the United proposed the establishment of the principle of free ships States with free goods, as between all the powers of the North and American South American continents. It was declared that the this subject. rule of public law-that the property of an enemy is liable to capture in the vessels of a friend, has no foundation in natural right, and, though it be the established usage of nations, rests entirely on the abuse of force. No neutral nation, it was said, was bound to submit to the usage; and though the neutral may have yielded at one time to the practice, it did not follow that the right to vindicate by force the security of the neutral flag at another, was thereby permanently sacrificed. But the neutral claim to cover enemy's property was conceded to be subject to this qualification: that a belligerent may justly refuse to neutrals the benefit of this principle, unless admitted also by their enemy for the protection of the same neutral flag. It is accordingly stipulated, in the treaty between the United States and the Republic of Colombia, that the rule of free ships free goods should be understood "as applying to those powers only who recognize this principle; but if either of the two contracting parties shall be at war with a third, and the other neutral, the flag of the neutral shall cover the

property of enemies whose governments acknowledge the same principle, and not of others." The same restriction of the rule had been previously incorporated into the treaty of 1819, between the United States and Spain, and has been subsequently inserted in their different treaties with the other South American Republics. (a)

A neutral

ship at

my's

papers,

&c.

ene

§ 473. It has been decided in the prize courts, both of tempting to the United States and of Great Britain, that the privicover pro lege of the neutral flag of protecting enemy's property, erty by false whether stipulated by treaty or established by municipal ordinances, however comprehensive may be the terms in which it may be expressed, cannot be interpreted to extend to the fraudulent use of that flag to cover enemy's property in the ship, as well as the cargo. (a) Thus during the war of the Revolution, the United States, recognizing the principles of the armed neutrality of 1780, exempted by an ordinance of Congress all neutral vessels from capture, except such as were employed in carrying contraband goods, or soldiers, to the enemy; it was held by the continental Court of Appeals in prize causes, that this exemption did not extend to a vessel which had forfeited her privilege by grossly unneutral conduct in taking a decided part with the enemy, by combining with his subjects to wrest out of the hands of the United States, and of France, their ally, the advantages they had acquired over Great Britain by the rights of war in the conquest of Dominica. By the capitulation of that island, all commercial intercourse with Great Britain had been prohibited. In the case in question, the vessel had been purchased in London, by neutrals, who supplied her with false and colorable papers, and assumed on themselves the ownership of the cargo for a voyage from London to Dominica. Had she been employed in a fair commerce, such as was consistent with the rights of neutrality, her cargo, though the property of an enemy, could not be seized as prize of war; because Congress had said, by their ordinance, that the rights of neutrality should extend protection to such effects and goods of an enemy. But if the neutrality were violated,

(a) Mr. Secretary Adams's Letter to Mr. Anderson, American Minister to the Republic of Colombia, 27th of May, 1823. For the practice of the prize court, as to the allowance or refusal of freight on enemy's goods taken on board neutral ships, and on neutral goods found on board an enemy's ship, see Wheaton's Rep. ii. Appendix, note I. 54-56.

(a) The Citade de Lisboa, Robinson's Adm. Rep. vi. 358.

Congress had not said that such a violated neutrality shall give such protection. Nor could they have said so, without confounding all the distinctions of right and wrong; and Congress did not mean, in their ordinance, to ascertain in what cases the rights of neutrality should be forfeited, to the exclusion of all other cases; for the instances not mentioned were as flagrant as the cases particularized. (b)

By the treaty of 1654, between England and Portugal, it was stipulated, (art. 23,) "That all goods and merchandise of the said Republic or King, or of their people, or subjects found on board the ships of the enemies of either, shall be made prize, together with the ships, and confiscated. But all the goods and merchandise of the enemies of either on board the ships of either, or of their people or subjects, shall remain free and untouched."

of enemy

applicable

shipped be

§ 474. Under this stipulation, thus coupling the two The rule opposite maxims of free ships free goods, and enemy ships ships, enemy enemy goods, it was determined by the British prize courts, goods-not that the former provision of this article, which subjects to to goods, condemnation the goods of either nation found on board fore the war. the ships of the enemy of the other contracting party, could not be fairly applied to the case of property shipped before the contemplation of war. Sir W. Scott (Lord Stowell) observed, in delivering his judgment in this case, that it did not follow, that because Spanish property put on board a Portuguese ship, would be protected in the event of the interruption of war, therefore Portuguese property on board a Spanish ship should become instantly confiscable on the breaking out of hostilities with Spain: that, in one case, the conduct of the parties would not have been different, if the event of hostilities had been known. The cargo was entitled to the protection of the ship, generally, by this stipulation of the treaty, even if shipped in open war; and à fortiori, if shipped under circumstances still more favorable to the neutrality of the transaction. In the other case, there might be reason to suppose, that the treaty referred only to goods shipped on board an enemy's vessel, in an avowed hostile character; and that the neutral merchant would have acted differently, if he had been apprised of the character of the vessel at the time when the goods were put on board. (a)

(b) The Erstern, Dallas's Rep. ii. 34.

(a) The Marianna, Robinson's Adm. Rep. v. 28.

The two

maxims in later treaties.

§ 475. The same principle has been frequently incorporated into treaties between various nations, by which the principle of free ships free goods is associated with that of enemy ships enemy goods. The treaties of Utrecht expressly recognize it, and it has been also incorporated into the different treaties between the United States and the South American Republics, with this qualification, "that it shall always be understood, that the neutral property found on board such enemy's vessels shall be held and considered as enemy's property, and as such shall be liable to detention and confiscation, except such property as was put on board such vessel before the declaration of war, or even afterwards, if it were done without the knowledge of it; but the contracting parties agree that two months having elapsed after the declaration, their citizens shall not plead ignorance thereof. (a)223

(a) Treaty of 1828, between the United States and Colombia, art. 13. By the treaty of 1831, between the United States and Mexico; by that of 1834 with Chili, art. 13, the term of four months is established for the same purpose; and by that of 1842 with Equador, art. 16, the term of six months.

[223 Free Ships, Free Goods. The second article of the Declaration of Paris of 1856 forms a new era in the history of this doctrine of "free sltips, free goods.” It is partly in these words: "The neutral flag covers enemy's goods, with the exception of contraband of war." (The third article, that neutral goods not contraband are not seizable under the flag of an enemy, is of little importance, as that was already the law of nations; and the article had only the effect of abrogating clauses to the contrary in subsisting treaties between any of the powers that were parties to it.)

The author's text and notes give the history of the subject down to 1847. The United States and Great Britain have long stood committed to three points, as, in their opinion, established in the law of nations-(1) That a belligerent may take enemy's goods from neutral custody on the high seas; (2) That neutral goods are not subject to capture from the mere fact that they are on board an enemy's vessel; and (3) That the carrying of enemy's goods by a neutral is no offence, and, consequently, not only does not involve the neutral vessel in penalty, but entitles it to its freight from the captors, as a condition to a right to interfere with it on the high seas. Great Britain has sustained these rules by uniform judicial decisions, and by the concurrent opinions of her leading text-writers. (Phillimore's Intern. Law, iii. §§ 161-212. Manning's Law of Nations, 203-280. Wildman's Intern. Law, ii. 136.) While the government of the United States has endeavored to introduce the rule of "free ships, free goods," by conventions, her courts have always decided that it is not the rule of war; and her diplomatists and her text-writers — with singular concurrence, considering the opposite diplomatic policy of the country-have agreed to that position. (Wheaton, suprà; Kent's Comm. i. 124–130; Halleck's Intern. Law, 632-635; and Woolsey's Introd. § 170.)

Beside the authority of the Consolato del Mare, the right to take enemy's goods from neutral ships has been sustained by Grotius (iii. 6, 26; i. 5, note 6), Zouch (Jus Feciale, ii. 5, 6, 8), Bynkershoek (Quæst. i. 13, 14), Heineccius (de Navium

Contra

band of

§ 476. The general freedom of neutral commerce with the respective belligerent powers is subject to some ex- war. ceptions. Among these is the trade with the enemy in certain Comm. ii. 8, 9), Loccenius (de Jure Marit. ii. 4, 12), Vattel (iii. 115), Albericus Gentilis (Hisp. Advoc. i. cap. 27), Azuni (Diritto Maritimo, Part II. ch. 3, arts. 1, 2). It has been denied by Klüber (§ 299), De Martens (ii. §§ 316, 322), and by Massé (Droit Comm. liv. ii. tit. 1, ch. 2, § 2). Hautefeuille, after a full comparison and discussion of the arguments of the text-writers and the history of the treaties, states his conclusion strongly against the right. (Droits des Nat. Neutr., ii. tit. 10, ch. 1-3.) But it is to be observed, that these latter writers argue the question as one of abstract right and policy, rather than of the usage of nations, as established by judicial decisions adopted or acquiesced in by States, and confirmed by treaties. Ortolan balances the arguments and usages fairly, rejecting some of the arguments urged against the right, and expresses his satisfaction that the Declaration of Paris of 1856 has settled the question in favor of the exemption of the neutral goods, as his own opinion inclined. (Règl. Intern. ii. ch. 5.) Heffter gives rather a history of the controversy than an opinion upon it, but discards the alleged connection between the two maxims, -"Frei Schiff, frei Gut," "Unfrei Schiff, unfrei Gut." (Europ. Völker. §§ 162-66.) From 1786 to 1854, Great Britain made no treaty limiting her belligerent right as to enemy's goods in neutral ships; and her only previous treaty that did so, and survived the first shock of the wars of the French Revolution, — that of 1654 with Portugal, was abrogated by the treaty of 1810, and the abrogation confirmed and continued by that of 1842. (Martens, Recueil, tom. iii. p. 347.)

Dr. Woolsey (§ 172) gives, in a condensed form, the results of his examination into the history of the cantilena, “free ships, free goods." He states them in five propositions (1) In mediaval Europe, there was an opinion that neutral trade could be declared unlawful by belligerents, which led to the occasional practice of condemning neutral ships for carrying enemy's goods. (2) With the growth and power of commerce, came the right to carry enemy's goods and to put goods in enemy's vessels, subject only to the right of the belligerent to search vessels, and take them in for adjudication on what should be actually enemy's property. (3) During the seventeenth and eighteenth centuries, the treaties had no line of principle, but of varying policy ; and, where free ships were permitted to make free goods, the treaties often joined the accidental and merely verbal converse, of hostile ships making hostile goods. (4) After 1775, neutral nations, and those with inferior naval power, usually endeavored to incorporate the rule of “free ships, free goods” into the law of nations, but were prevented by Great Britain. (5) Since 1815, the increasing power of trade and capital is leading to the adoption of the rule. Dr. Woolsey might have added, that the rule, however adopted in treaties or declarations, has, so far, never survived the exigencies of a great war, or a change in the commercial interests of the nation adopting it.

The Consolato del Mare, in the thirteenth century, admits the right to capture enemy's goods in neutral vessels, on terms of compensation to the neutral carrier. (Pardessus, ii. 303-307, Consolato del Mare, ch. 231.) Manning (244-248) and Ward (126-7) say that the treaties before the seventeenth century coincide with the doctrine of the Consolato del Mare. (For the varying treaties on the subject during the seventeenth and eighteenth centuries, see Phillimore's Intern. Law, §§ 173–212, and note a to § 202; and Ward, 126-152; also, Woolsey's Introd. §§ 173-175.)

The United States, in its treaty with England of 1795, admitted the right to capture enemy's goods in neutral vessels. But our treaties with France in 1778, 1780, and 1800, with the Netherlands in 1782, with Sweden in 1783, 1816, and 1827, make