§4. It may be stated, as a general principle which lies at the foundation of the rules of international law relating to this subject, that the violation of neutral duties is neither innocent nor lawful. It is not simply the penalty incurred by such violation that makes it wrong, as some have asserted; nor is it correct to say that, if the neutral merchant is willing to incur the risk of capture and condemnation, he may engage, with entire security of conscience, in a trade forbidden by the law of nations. The act is wrong in itself, and the penalty results from his violation of moral duty, as well as of law. The duties imposed upon the citizens and subjects flow from exactly the same principle as those which attach to the government of neutral state. "Where he supplies to the enemy," says Duer, "munitions or other articles contraband of war, or relieves with provisions, or otherwise, a blockaded port, although his motives may be different, his moral delinquency is precisely the same. By these acts he makes himself personally a party to a war, in which, as a neutral, he had no right to engage, and his property is justly treated as that of an enemy." "It appears, from recent decisions in the courts of common law in England, that the doctrine I have stated, has been there explicitly recognized." (Duer, On Insurance, vol. 1, pp. 754, 755, 772-775; Harrott v. Wise, 9 Barn. and Cress. Rep., p. 712; Naylor v. Taylor, 9 B. and Cress. Rep., p. 715; Medeiros v. Hill, 8 Bing. Rep., p. 231; The Shepherdess, 5 Rob. Rep., p. 264; Pistoye et Duverdy, Traité des Prises, tit. 6, ch. 2, sec. 3; Riquelme, Derecho Pub. Int., lib. 1, tit. 2, cap. 14; Heffter, Droit International, § 148; Hautefeuille, Des Nations Neutres, tit. 15.)

§ 5. The first question which presents itself for consideration, as connected with neutral duties, is the transportation of goods of an enemy in a neutral vessel. "Whatever may be the true original abstract principle of natural law on this subject," says Mr. Wheaton, "it is undeniable that the constant usage and practice of belligerent nations, from the earliest times, have subjected enemy's goods, in neutral vessels, to capture and condemnation as prizes of war. This constant and universal usage, has only been interrupted by treaty stipulations, forming a temporary conventional law between the parties to such stipulations. The regulations and prac

tice of certain maritime nations, at different periods, have not only considered the goods of an enemy laden in the ships of a friend, liable to capture, but have doomed to confiscation the neutral vessel, on board of which these goods were laden. This practice has been sought to be justified upon a supposed analogy with that provision of the Roman law, which involved the vehicle of prohibited commodities in the confiscation pronounced against the prohibited goods themselves. Thus, by the marine ordinance of Louis XIV., of 1681, all vessels laden with enemy's goods are declared lawful prizes of war. The contrary rule had been adopted by the preceding prize ordinances of France, and was again revived by the règlement of 1744, by which it was declared, that in case there should be found on board of neutral vessels, of whatever nation, goods or effects belonging to his Majesty's enemies, the goods or effects shall be good prize, and the vessel shall be restored. Valin, in his commentary upon the ordinance, admits that the more rigid rule, which continued to prevail in the French prize tribunals from 1681 to 1744, was peculiar to the jurisprudence of France and Spain; but that the usage of other nations was only to confiscate the goods of the enemy." The concurring testimony of text-writers is, that by the usage of the world, neutral vessels are not liable to condemnation for carrying enemy goods, whatever rule may be adopted or enforced with respect to the condemnation of the goods themselves. The transportation of enemy's goods in a neutral vessel, cannot, therefore, be regarded, in general, as a violation of any neutral duty, or as an act subject to any punishment. (Wheaton, Elem. Int. Law, pt. 4, ch. 3, §§ 19, 20; Wheaton, Hist. Law of Nations, pp. 111-119, 200-206; Albericus Gentilis, Hisp. Advoc., lib. 1, cap. 27; Valin, Com. Sur l'Ord., liv. 3, tit. 9.)

§. 6. The rule of international law, as stated above by Mr. Wheaton, with respect to enemy goods in neutral vessels, is sustained by English and American text-writers, and by the older continental publicists, as Bynkershoek, Heineccius, Cocceius, Vattel, Lampredi, Azuni, etc., while Hubner, Kluber, Rayneval, Jouffroy, Massé, Ortolan, and Hautefeuille, have not only attacked its principles, but have denied its correctness as a rule of law. Hautefeuille has discussed the

question at great length, and with marked ability. His conclusions are: "1st, That neutrals may freely transport, in neutral vessels, the goods of one of the belligerents, except contraband of war; 2d, That belligerents have not, in any case, the right to seize the property of their enemy in neutral vessels; in a word, that free ships make free the merchandize which they carry, whatever may be the ownership." (Wheaton, Elem. Int. Law, pt. 4, ch. 3, §§ 19, 20; Wildman, Int. Law, vol. 2, p. 136; Manning, Law of Nations, pp. 203–280; Azuni, Droit Maritime, tome 2, ch. 3; Lampredi, Du Commerce, etc., pt. 1, § 10; Cocceius, De Jure Belli. in Amicos; Vattel, Droit des Gens, liv. 3, ch. 7, § 115; Heineccius, De Navium, etc., com. 2, §§ 8, 9; Bynkershoek, Quaest. Jur. Pub., lib. 1, cap. 4; Hubner, Saisie des Batimens, tome 1, pt. 2, ch. 2; Rayneral, De la Liberté des Mers, tome 1, ch. 16; Jouffroy, Droit Maritime, pp. 188, et seq.; Massé, Droit Commercial, liv. 2, tit. 1, ch. 2, sec. 2; Ortolan, Diplomatie de la Mer, liv. 3, ch. 5; Hautefeuille, Des Nations Neutres, tit. 10; Heffter, Droit International, § 162; De Cussy, Droit Maritime, liv. 1, tit. 3, § 10; Nau, Volkerseerecht, § 130; Loccenius, de Jure Maritimo, lib. 2, cap. 4, § 12; Zouch, Juris et Juridici Fecialis, p. 2, §8; Molloy, de Jure Maritimo, b. 1, c. 1, § 18; Bello, Derecho Internacional, pt. 2, cap. 8, § 1; Riquelme, Derecho Pub. Int., lib. 1, tit. 2, cap. 14; De Cussy, Droit Maritime, liv. 1, tit. 3, § 10; Lampredi, Commerce des Neutres, pt. 1, § 10.)

§ 7. Another question, usually discussed in connection with the carrying of enemy's goods in neutral ships, is that of transporting neutral goods in enemy's ship. On this question, we quote some of the remarks of Mr. Wheaton, who has discussed these questions at considerable length, and with marked ability. "Although," he says "by the general usage of nations, independently of treaty stipulations, the goods of an enemy, found on board the ships of a friend, are liable to capture and condemnation, yet the converse rule, which subjects to confiscation the goods of a friend on board the vessels of an enemy, is manifestly contrary to reason and justice. It may, indeed, afford, as Grotius has stated, a presumption that the goods are enemy's property; but it is such a presumption as will readily yield to contrary proof, and not of that class of presumptions which the civilians call presump

tiones juris et de jure, and which are conclusive upon the party. But, however unreasonable and unjust this maxim may be, it has been incorporated into the prize codes of certain nations, and enforced by them at different periods." The rule cannot be defended on sound principles, and is now admitted only when established by special compact, as an equivalent for the converse maxim, that free ships make free goods. This relaxation of belligerent pretentions may be fairly coupled with a correspondent concession by the neutral, that enemy ships should make enemy goods. (Wheaton, Elem. Int. Law, pt. 4, ch. 3, § 21; The Atalanta, 3 Wheaton Rep., p. 409; The London Packet, 5 Wheaton Rep., p. 132; The Amiable Isabella, 6 Wheaton Rep., p. 1; Ortolan, Diplomatie de la Mer, tome 2, ch. 5; Garden, De Diplomatie, liv. 7, §§ 7, 8; Bello, Derecho Internacional, pt. 2, cap. 8, §2; Heffter, Droit International, §§ 163, 164; Riquelme, Derecho Pub. Int., lib. 1, tit. 2, cap. 14; Lampredi, Commerce des Neutres, pt. 1, §11.)

§ 8. The same author then proceeds to show that these two maxims are not only not inseparable, but have no natural connection. "The primitive law," he says, "independently of international compact, rests on the simple principle, that war gives a right to capture the goods of an enemy, but gives no right to capture the goods of a friend. The right to capture an enemy's property has no limit but of the place where the goods are found, which, if neutral, will protect them from capture. We have already seen that a neutral vessel on the high seas is not such a place. The exemption of neutral property from capture has no other exceptions than those arising from the carrying of contraband, breach of blockade, and other analagous cases, where the conduct of the neutral gives to the belligerent a right to treat his property as enemy's property. The neutral flag constitutes no protection to an enemy's property, and the belligerent flag communicates no hostile character to neutral property. States have changed this simple and neutral principle of the law of nations, by mutual compact, in whole or in part, according as they believed it to be for their interest; but the one maxim, that free ships make 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 belligerent to the neutral, and gives to the neutral 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 preexisting law of nations; but 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 stipulates that free ships shall make free goods, did not necessarily imply the converse proposition that enemy ships make enemy goods, the treaty being silent as to the latter; and consequently that 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." (Kent, Com. on Am. Law, vol. 1, pp. 126–131; Wheaton, Elem. Int. Law, pt. 4, ch. 3, § 22; The Nereide, 9 Cranch Rep., p. 388; Ortolan, Diplomatie de la Mer, tome 2, ch. 5; Garden, De Diplomatie, liv. 7, §§ 7, 8; Bello, Derecho Internacional, pt. 2, cap. 8, §2; Heffler, Droit International, §§ 163, 164; Riquelme, Derecho Pub. Int., lib. 1, tit. 2, cap. 14; Hautefeuille, Des Nations Neutres, tit. 15; Poehls, Seerecht, etc., b. 4, § 518; Pando, Derecho Pub. Int., p. 472, et seq.; Kaltenborn, Seerecht, etc., § 234; De Cussy, Droit Maritime, liv. 1, tit. 3, § 10.)

$9. Although the United States, by their judicial tribunals and executive department, have recognized the right of capturing enemy's goods in neutral vessels, as a subsisting right under the law of nations, independently of conventional arrangements, they have always endeavored to incorporate the privilege of free ships, free goods, in their treaties, and advocated its adoption as a rule of international jurisprudence. It was incorporated in their treaties with France in 1778 and 1800, with the United Provinces in 1782, with Sweden in 1783, 1816, and 1827, with Prussia in 1785 and 1828, and with Spain in 1795; this last was modified in 1819, to the effect that the flag of the neutral should cover the property of the enemy only when his own government recognized the