of such decided maritime superiority as that of Great Britain, was an insuperable obstacle to the success of the Baltic conventional law of neutrality; and it was abandoned in 1793 by the naval powers of Europe, as not sanctioned by the existing law of nations, in every case in which the doctrines of that code * did not rest upon positive compact. During the *127 whole course of the wars growing out of the French revolution, the government of the United States admitted the English rule to be valid, as the true and settled doctrine of international law; and that enemy's property was liable to seizure on board of neutral ships, and to be confiscated as prize of war. (a) It has, however, been very usual, in commercial treaties, to stipulate that free ships should make free goods, contraband of war always excepted; but such stipulations are to be considered as resting on conventional law merely, and as exceptions to the operation of the general rule, which every nation not a party to the stipulation is at perfect liberty to exact or surrender. The Ottoman Porte was the first power to abandon the ancient rule, and she stipulated, in her treaty with France, in 1604, that free ships should make free goods, and she afterwards consented to the same provision in her treaty with Holland, in 1612; and according to Azuni, (b) Turkey has, at all times, on international questions, given an example of moderation to the more civilized powers of Europe.

The effort made by the Baltic powers, in 1801, to recall and enforce the doctrines of the armed neutrality, in 1780, was met, and promptly overpowered, and the confederacy dissolved by the naval power of England. Russia gave up the point, and by her convention with England of the 17th June, 1801, expressly agreed, that enemy's property was not to be protected on board of neutral ships. The rule has since been very generally acquiesced in; and it was expressly recognized in the

(a) Mr. Jefferson's Letter to M. Genet, July 24th, 1793. Mr. Pickering's Letter to Mr. Pinckney, January 16th, 1797. Letter of Messrs. Pinckney, Marshall, and Gerry, to the French Government, January 27th, 1798.

(b) Maritime Law of Europe, vol. ii. 163. Flasson, in his Histoire de la Diplomatie Française, t. ii. 226, says, that it was not the object of the Ottoman Porte, in the instance mentioned in the text, to abandon the ancient rule, and that it was not a treaty, but a concession to France of privileges and exemption, from pure liberality.

Austrian ordinance of neutrality, published at Vienna, *128 the 7th of August, 1803. Its reasons and authority have been ably vindicated by English statesmen and jurists, and particularly by Mr. Ward, in his treatise of the relative rights and duties of belligerent and neutral powers in maritime affairs, published in 1801, and which exhausted all the law and learning applicable to the question. (a) 1

(a) Mr. Manning, in his Commentaries on the Law of Nations, pp. 203-244, has discussed the question whether "free ships make free goods," quite at large, and with great strength of reasoning. He vindicates the belligerent right against the doctrine of the Baltic powers, upon solid principles, and upon the authority of the Consolato del Mare, and of the most eminent European jurists who have written on the law of nations within the last two centuries. The principal authorities have been already referred to, at pages 124, 125, n. a. Mr. Manning also examines the question, on the authority of the customary and conventional law of nations, by a review of a succession of treaties between European powers, from the year 1351 to the present times.

'The following remarkable declaration of the Government of Great Britain, made on the commencement of the war with Russia, in March, 1854, indicates the accession of England itself to the principles of the Armed Neutrality. The declaration is identical with that published by his Majesty the Emperor of the French. Ex. Doc. 33d Cong. 1st Sess. H. Doc. 103.

"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 dispatches, 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 enemy's 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 28th, 1854."

An Order in Council, passed on the 15th April, 1854, gave to the Declaration a more precise form and binding authority.

Though the belligerent claims, mentioned in the Declaration, are not renounced, but only "waived for the present," it cannot be doubted but that this measure is a great advance of the rights of neutrals and the interests of commerce. See an article on the Orders in Council on Trade during War, in the Edinburgh Review, July, 1854. It presents the latest aspect of the most important and interesting doctrines of international law.

Neutral

property in vessel.

It is also a principle of the law of nations relative to neutral rights, that the effects of neutrals, found on an enemy's board of enemy's vessels, shall be free; and it is a right as fully and firmly settled as the other, though, like that, it is often changed by positive agreement. (a) The principle is to be met with in the Consolato del Mare, and the property of the neutral is to be restored without any compensation for detention, and the other necessary inconveniences incident to the capture. The former ordinances of France, of 1543, 1585, and 1681, declared such goods to be lawful prize; and Valin (b) justifies the ordinances, on the ground that the neutral, by putting his property on board of an enemy's vessel, favors the enemy's commerce, and agrees to abide the fate of the vessel. But it is fully and satisfactorily shown, by the whole current of modern authority, that the neutral has a perfect right to avail himself of the vessel of his friend, to transport his property; and Bynkershoek has devoted an entire chapter to the vindication of the justice and equity of the right. (c)

The two distinct propositions, that enemy's goods found on board a neutral ship may lawfully be seized as prize of war, and that the goods of a neutral found on board of an

* enemy's vessel were to be restored, have been explicitly *129 incorporated into the jurisprudence of the United States, and declared by the Supreme Court (d) to be founded in the law of nations. The rule, as it was observed by the court, rested on the simple and intelligible principle, that war gave a

The result is, that there is nothing like system or consistency of principle in the conventional law of Europe. The belligerent rule has been alternately adopted and rejected, and qualified with infinite vicissitude, and so as to leave the rule, as a general and settled principle of international law, when not disturbed by positive stipulations, in full force. Comm. pp. 244-280.

(a) Grotius, b. 3, c. 6 and 16. to the Prussian Memorial, 1753.

Answer

Bynk. c. 13. Vattel, b. 3, c. 7, sec. 116.
Mr. Jefferson's Letter to M. Genet, July 24th,

1793. Mr. Pickering's Letter to Mr. Pinckney, January 10th, 1797.

(b) Comm. b. 3, tit. 9, des Prises, art. 7.

(c) Consulat de la Mer, par Boucher, tom. ii. c. 276, sec. 1012, 1013. Heineccius, de Nav. ob Vect. c. 2, sec. 9. Opera, tom. ii. part 1, pp. 349-355.

7, sec. 116. Bynk. c. 13.

(d) The Nereide, 9 Cranch, 388.

Vattel, b. 3, c.

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 is found. After vindicating the simplicity and justice of the original rule of the law of nations, against the speculations of modern theorists, and the ultima ratio of the armed neutrality, which attempted to effect by force a revolution in the law of nations, the court stated, that nations have 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 stipulation that neutral bottoms should make neutral goods, was a concession made by the belligerent to the neutral, and it gave to the neutral flag a capacity not given to it by the law of nations. On the other hand, the stipulation subjecting neutral property found in the vessel of an enemy to condemnation as prize of war, was a concession made by the neutral to the belligerent, and took from

the neutral a privilege he possessed under the law of na*130 tions; but neither reason nor practice *rendered the two

concessions so indissoluble, that the one could not exist without the other. It rested entirely in the discretion of the contracting parties, whether either or both should be granted. The two propositions are distinct and independent of each other, and they have frequently been kept distinct by treaties, which stipulated for the one and not for the other. (a)

The government of the United States, in their negotiations with the republics in South America, have pressed very earnestly for the introduction and establishment of the principle

(a) The Cygnet, 2 Dodson's Adm. Rep. 299, S. P.

of the Baltic code of 1780, that the friendly flag should cover the cargo; and this principle was incorporated into the treaty between the United States and Colombia, in 1825, and into the treaty of navigation and commerce between the United States and the Republic of Chili, in 1832. (a) The introduction of those new republics into the great community of civilized nations, has justly been deemed a very favorable opportunity to inculcate and establish, under their sanction, more enlarged and liberal doctrines on the subject of national rights. It has been the desire of our government to obtain the recognition of the fundamental principles, consecrated by the treaty with Prussia, in 1785, relative to the perfect equality and reciprocity of commercial rights between nations; the abolition of private war upon the ocean; and the enlargement of the privileges of neutral commerce. The rule of public law, that the property of an enemy is liable to capture in the vessel of a friend, is now declared, on the part of our government, to have no foundation in natural right; and that the usage rests entirely on force. Though the high seas are a general jurisdiction, common to all, yet each nation has a special jurisdiction over its own vessels; and all the maritime nations of modern Europe have, at times, acceded to the principle, that the property of an enemy should be protected in the vessel of a friend. No neutral nation, it is said, is bound to submit to the usage; and the neutral may have *yielded at one time to the usage, without sacrificing the *131 right to vindicate, by force, the security of the neutral flag at another. The neutral right to cover enemy's property is conceded to be subject to this qualification; that a belligerent nation may justly refuse to neutrals the benefit of this principle,

(a) It was stipulated in those American treaties, that as between the parties, free ships should give freedom to goods—that the flag should cover the cargo even of enemies, contraband goods excepted, and should also cover the persons, though enemies, unless they were officers or soldiers in actual service. But the provision was only to apply to those powers who recognized the principle; and neutral property found on board enemy's vessels was, under the above stipulation, liable to capture. If, however, the neutral flag did not protect enemy's property, then the goods of a neutral on board of an enemy's vessel were to be free. Treaty with Colombia, art. 12, 13. Treaty with Chili, art. 12, 13. Treaty with Venezuela, art. 15. Treaty with the Peru-Bolivian Confederation, art. 11, 12. Treaty with Ecuador, in 1839, art. 15.