ing 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, 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 particu larized.1

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."

1 Dallas's Rep. vol. ii. p. 34. The Erstern.

Under this stipulation, thus coupling the two opposite maxims of free ships free goods, and enemy ships enemy goods, it was determined by the British prize courts, that the former provision of this article, which subjects to condemnation the goods of either nation found on board 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 apprized of the character of the vessel at the time when the goods were put on board.'

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 con

1 Robinson's Adm. Rep. vol. v. p. 28. The Marianna.

tracting parties agree that two months having elapsed after the declaration, their citizens shall not plead ignorance thereof.”1 (a)

Treaty of 1828, between the United States and Columbia, 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.

(a) [In the relations of neutrals and belligerents, as regards the rules of maritime law, the present European war has produced the most important modifications. Though the treaties of commerce, concluded at Utrecht, between the principal maritime powers, were repeatedly renewed by conventions, to which England was a party, and, though in the case of the Spanish marriages, in 1846, she invoked the political arrangements there entered into, having for their object to prevent the union of the French and Spanish crowns, neither her government nor her courts of admiralty have, since her ascendency on the ocean has been established, admitted that the rules of maritime law there recognized were binding as the common law of nations; but they have maintained that their operation was confined to the contracting parties. Whatever fluctuations her orders in council have, in other respects, occasioned in her maritime code, yet England has constantly asserted, as a general principle, in the absence of conventional engagements, that enemy's goods, on board of neutral vessels are good prize, while she has conceded the immunity of neutral goods in enemy's ships. The latter part of the rule, however, was not unfrequently rendered nugatory by an arbitrary law of contraband, and by the prohibition of the enemy's coasting and colonial trade, extending sometimes to a practical interdict of all neutral commerce.

England had, indeed, in all her treaties with France from the year 1655 to 1786, it being recognized in five treaties of peace and three commercial conventions, adopted the rule that free ships make free goods; and the same principle is found in most of her treaties with other powers, before the French Revolution. But for the last three quarters of a century, her policy had been different even as respects treaty stipulations, and since the commercial convention with France of 1786, she had entered into no new compact to the prejudice of her belligerent pretensions; and which, as asserted by her, under the plea of the right of search, enabled her to institute a police over all neutral navigation, applying not only to the merchandise, but extending to an investigation, tested by her own municipal laws, of the nationality of the crew, with a view of subjecting them, by impressment, to a forced duty in her military marine.

The only treaty, containing the provision that the flag covered the property of the cargo, to which England was a party, that was operative during any portion of the wars between 1793 and 1814, was that of 1654 with Portugal, and which, as regards that point, was abrogated by the treaty of commerce of 19th February, 1810. The mutual abandonment of the privilege, granted by former treaties to vessels of the respective countries to carry merchandise, belonging to the enemies of the other, is also repeated in the subsisting treaty between these powers of 13th July, 1842.

§ 24. Con

The general freedom of neutral commerce with the respective belligerent powers is subject to some excep- traband of tions. Among these is the trade with the enemy in cer

war.

England succeeded in having her views recognized, with some concessions, after the failure of the second armed neutrality, in the maritime convention of 1801, with Russia, to whieh Sweden and Denmark acceded, as well as in the treaty of 1794 with the United States. And she ever resisted the attempts, made by the latter power, previously to the present war, to induce her to take into consideration, with a view to their modification, those rules of maritime law, which though recognized by the courts of both countries were at variance with the common sense of Christendom, as shown by the general current of conventional stipulations during the last two centuries. In 1823, it was proposed by us to discuss them in connection with the abolition of privateering, but with no other success than attended the suggestions on that subject. Nor, in 1826-7, when many questions in controversy between the two countries were settled, was there any better disposition manifested to examine the conflicting maritime principles. See Schoell, Histoire des Traités de Paix, tom. ii. pp. 108, 121. Id. tom. iv. p. 21. Id. tom. x. pp. 44, 127. Annual Reg. 1846, p. 286. Hautefeuille, Droits des Nations Neutres, tom. iii. p. 270. Mr. Rush to Mr. Adams, August 12, 1824. Cong. Doc. Senate, 18 Cong. 2 Sess. Confidential, p. 99. Mr. Gallatin to Mr. Clay, Secretary of State, 26th September, 1827, MS.

Notwithstanding the capitulation granted by the Ottoman Porte to Henry IV., in 1604, according immunity to French property in enemy's ships, while it allowed the French flag to protect enemy's property, was the first concession to that extent, in favor of neutrals, the internal ordinances of France were not only inconsistent with the numerous treaties, including those of Utrecht, to which she was a party, but were even more severe than those of England, or of the Consolato del Mare, on which the latter were based. That code, while it authorized the condemnation of enemy's property, on board of neutral vessels, left free the vessel itself and the rest of the cargo, and moreover allowed freight to the place of destination to the neutral carrier, with an indemnity for the detention.

By a decree of Francis I., in 1543, (the principles of which, after some temporary modifications, were reaffirmed in the marine ordinance of 1681, and which continued in force till 1744,) not only was enemy's property, on board of a neutral vessel, condemned, but the vessel itself and the rest of the cargo were, also, confiscated. At the same time, the goods of a friend, laden on board of an enemy's ship, were declared good and lawful prize. By an ordinance of 1704, all articles of the produce and manufacture of the enemy's country, on board of a neutral vessel, were subject to capture, though they did not cause the confiscation of the vessel and of the other parts of the cargo, which the carrying of enemy's property still continued to do. The peculiar provisions of this ordinance, like the French decrees and British Orders in Council of the present century, of which neutral nations were the victims, were attempted to be justified as retaliatory measures; England and Holland, with whom France was at war, having by the convention of 22d August, 1689, which was renewed in the war of the Spanish Succession, not only declared all articles of the produce and manufacture of France liable to

tain articles called contraband of war. The almost unanimous authority of elementary writers, of prize ordinances, and of

seizure in neutral vessels, but subjected the rest of the cargo, as well as the vessel, to be confiscated. In 1744, the ordinance of 1681 was so far modified that the carrying of enemy's goods did not confiscate the neutral vessel or the rest of the cargo, but enemy's goods, as well as articles of the produce and manufacture of the enemy's country, in neutral vessels, were still liable to confiscation.

The treaty of February 6, 1778, between the United States and France, adopting the principle free ships free goods, was extended by an ordinance of July 26, 1778, to all neutrals, but it contained a provision for returning to the old law, if the enemies of France did not recognize the same rule, and the neutral powers suffered it to be violated. The ordinance was in fact suspended, with respect to the United Provinces, from 14th January, 1779, to 22d April, 1780. As the ordinance of 1681 governed in those cases, for which that of 1778 had made no provision, neutral goods, on board of enemy ships continued to be subject to confiscation. The principle that free ships make free goods has, since the American war, been the generally recognized rule of French maritime law, though it was, not unfrequently, violated by the revolutionary governments. The national assembly, by a decree of 14th February, 1793, continued in force the existing laws as to prizes, until otherwise ordered, though by a decree of May 9, of the same year, in consequence of the course of the British government, enemy's property on board of neutral vessels was made liable to confiscation. From the operation of this order the United States were, on the 1st of July, declared to be excepted on account of their treaty of 1778, as were likewise, subsequently, Sweden and Denmark, and all others who had treaties with France consecrating the rights of the neutral flag. The Government of the Directory considered the treaty of 1794, between the United States and Great Britain, as a hostile act, on the part of America, towards France, and taking advantage of one of the articles of the treaty of 1778, by which it was declared that any favors granted by the one party to a foreign nation should become common to the other, it was declared by the decree of 12 Ventose, year 5, (2 March, 1797,) that the French had acquired by reason of the treaty with England, the right of taking enemy's property in American vessels. The United States, on their part, by an act of Congress of July 7, 1798, declared themselves, in consequence of the violation of the existing treaties by France, and her refusal to make reparations for injuries, or to negotiate respecting them, freed from their stipulations. After some acts of reprisal, authorized by the laws of the United States, the provision respecting "free ships free goods," as contained in the treaty of 1778, was renewed in the treaty of 1800, with a declaration, at the time of the exchange of ratifications, on which the claims of American citizens on their own government for spoliations anterior to its date are founded, of a renunciation of the indemnities mutually due or claimed growing out of the preceding treaties. A law of 29 Nivose, year 6, (18 January, 1798,) declared good prize every neutral vessel laden with enemy's goods, coming from England or her possessions. This was abrogated by the law of 23 Frimaire, year 8, (14 December, 1799,) and a decree was issued on 20th December, 1799, after the accession of Bonaparte, as First Consul, restoring the laws and usages of the monarchy, as they were in