"Mr. Dana does not appear to have been aware at the time when he so interpreted the declaration of Paris, that France and Great Britain, the two powers with whom the declaration originated, had in practice put an interpretation on the second and third resolutions which is calculated to relieve all neutrals, who have adhered to the declaration of Paris, from all risk of losing the benefit of their adherence to it under the circumstances contemplated by Mr. Dana. For instance, in anticipation of a joint war against China, which power has not acceded to the declaration of Paris, France and Great Britain, as allies in the event of war, issued each of them an ordinance as to the observance of the rules of maritime law under the declaration of the congress of Paris of 1856 towards the vessels and goods of the enemy and of neutral powers.'' Sir T. Twiss on Belligerent Rights, &c., London, 1884. "The declaration of Paris, 1856," says Dr. Woolsey (Int. Law App., iii., note 25), "by which the neutral flag covers enemies' goods, destroyed the force of the rule of 1756, for the new rule protects neutral trade in innocent articles between two hostile ports, whether such trade had been opened to neutrals in time of peace or not. The rule is expressed in the most general terms. But, although this rule is obsolete, and has gone into history for the most part, the United States, not being a party to the above-mentioned declaration, may yet be under the operation of the old British law in regard to coasting and colonial trade. Here two questions may be asked, the one touching the lawfulness of coasting trade proper, the other touching the conveyance by neutrals of their goods, brought out of foreign ports, from one port of the enemy to another. Our Government has contended for the right of neutrals to engage in both descriptions of trade, if we are not in an error, while some of our publicists hold the first to be reasonably forbidden, the other to be allowed. Judge Story says (Life and Letters, i, 285-289) that, in his private opinion, the coasting trade of nations, in its strictest character, is so exclusively a national trade that neutrals can never be permitted to engage in it during war without being affected with the penalty of confiscation. The British have unjustly extended the doctrine to cases where a neutral has traded between ports of the enemy with a cargo taken in at a neutral country.' He is as clearly satisfied that the colonial trade between the mother country and the colony, where that trade is thrown open merely in war, is liable, in most instances, to the same penalty. But the British have extended their doctrine to all intercourse with the colonies, even from or to a neutral country, and herein, it seems [to him], they have abused the rule.' There seems to be reason for such a difference. To open coasting trade to neutrals is a confession of inability to carry on that branch of trade on account of apprehensions from the enemy's force, and an invitation to neutrals to afford relief from the pressure of war. It is to adopt a new kind of vessel, on the ground that they cannot be captured. The belligerent surely has the right to say that his attempts to injure his enemy shall not be paralyzed in this manner. But he has no right to forbid the neutral to carry his own goods from hostile port to hostile port, when he might have done it before. Every right of innocent trade, then, enjoyed by the neutral in peace, should be allowed after the breaking out of the war; but new rights, given to them on account of the war, may be disregarded by the belligerent as injuring his interests. "Hautefeuille remarks, on the other side, that the sovereign who can interdict can also permit a certain kind of commerce. But this is begging the question. Can he, by such privileges, restrain his enemy from annoying him-privileges which are nothing but taking the neutral trader into a kind of partnership? Suppose that he hired war vessels from a neutral sovereign, would that exempt them from capture?” "There are many reasons which render the maritime trade of Great Britain the most valuable, as it is the largest, in the world, and indeed because it is the largest; and were our navy of ten times the strength and numbers it is, our trade would be still more valuable." 144 Edinb. Rev., 363, in stating why Great Britain should accept the doctrine As to Russia's vacillating attitude as to armed neutrality, see 8 John Quincy For an account of the action of the United States in reference to the rule of Mr. J. Q. Adams' correspondence, when at Berlin in 1798, as to the neutrality of The full text of the exposition of the doctrine of neutral rights at sea by Mr. The correspondence in 1854 between the United States and other countries as sess. The Brit. and For. St. Pap. for 1855-56, vol. 46, 821, gives correspondence be- Much of the correspondence as to the Treaty of Paris is given in Brit. and For. By the President's instructions of the 28th of August, 1812, issued under and in accordance with the prize act of that year (2 Stat. L., 761), British and American property, shipped in Great Britain, on board a vessel of the United States, after a knowledge of the war, but in consequence of the repeal of the British orders in council, are protected from forfeiture. The Thomas Gibbons, 8 Cranch, 421; The Mary, 9 ibid., 126. Goods appearing by ship's papers to be a consignment from alien enemies to American merchants, condemned in toto as prize, although further proof was offered that American merchants were jointly interested, and that they had a lien upon the goods in consequence of advances made by them. The Frances, 8 Cranch, 335. If a British merchant purchase with his own funds, two cargoes of goods, in consequence of, but not in strict conformity with, the orders of an American house, and ship them to America, giving the consignors an option within 24 hours after receipt of his letter to take or reject both cargoes, and if they give notice within the time that they will take one cargo, but will consider as to the other, this puts it in the power of the British merchant either to cast the whole upon the American house, or to resume his property, and make them accountable for that which came to their hands; and, therefore the right of property in cargo, does not, in transitu, vest in the American house, but remains in the British subject, and is liable to condemnation, he being an enemy. The Frances, 9 Cranch, 183. A vessel of the United States, which went to England after the war was known, and brought thence a cargo belonging chiefly to British subjects, condemned. The St. Lawrence, 8 Cranch, 434. The rules, that neutral bottoms make neutral goods, and that enemies bottoms make enemies' goods, are not only separable in their nature, but have generally been separated; and they are held in the United States to be distinct. The Nereide, 9 Cranch, 388. A stipulation in a treaty that neutral bottoms shall make neutral goods, does not by necessary implication introduce the principle that enemies' bottoms shall make enemies' goods. Ibid. Reciprocating to the subjects of a nation, or retaliating on them its unjust proceedings towards our citizens, is a political, not a legal meas ure. I bid. "The rule that the goods of an enemy, found in the vessel of a friend, are prize of war, and that the goods of a friend, found in the vessel of an enemy, are to be restored, is believed to be a part of the original law of nations, as generally, perhaps universally, acknowledged. Certainly, it has been fully and unequivocally recognized by the United States. This rule is founded on the simple and intelligible principle that war gives a full right to capture the goods of an enemy, but gives no right to capture the goods of a friend. In the practical application of this principle, so as to form the rule, the propositions that the neutral flag constitutes no protection to enemy property, and that the belligerent flag communicates no hostile character to neutral property, are necessarily admitted. The character of the property, taken distinctly and separately from all other considerations, depends in no degree upon the character of the vehicle in which it is found. S. Mis. 162-VOL. III- -20 305 "Many nations have believed it to be their interest to vary this simple and natural principle of public law. They have changed it by convention between themselves, as far as they have believed it to be for their advantage to change it. But unless there be something in the nature of the rule which renders its parts unsusceptible of division, nations must be capable of dividing it by express compact; and if they stipulate either that the neutral flag shall cover enemy goods, or that the enemy flag shall infect friendly goods, there would, in reason, seem to be no necessity for implying a distinct stipulation not expressed by the parties. Treaties are formed upon deliberate reflection. Diplomatic men read the public treaties made by other nations, and cannot be supposed either to omit or insert an article, common in public treaties, without being aware of the effect of such omission or insertion. Neither the one nor the other is to be ascribed to inattention. And if an omitted article be not necessarily implied in one which is inserted, the subject to which that article would apply remains under the ancient rule. That the stipulation of immunity to enemy goods, in the bottoms of one of the parties being neutral, does not imply a surrender of the goods of that party being neutral if found in the vessel of an enemy, is the prop osition of the counsel for the claimant, and he powerfully sustains that proposition by arguments arising from the nature of the two stipulations. The agreement that neutral bottoms shall make neutral goods, is, he very justly remarks, a concession made by the belligerent to the neutral. It enlarges the sphere of neutral commerce, and gives to the neutral flag a capacity not given to it by the law of nations. "The stipulation which subjects neutral property found in the bottom of an enemy to condemnation as prize of war, is a concession made by the neutral to the belligerent. It narrows the sphere of neutral commerce, and takes from the neutral a privilege he possessed under the law of nations. The one may be, and often is, exchanged for the other. But it may be the interest and the will of both parties to stipulate the one without the other; and if it be their interest or their will, what shall prevent its accomplishment? A neutral may give some other compensation for the privilege of transporting enemy goods in safety, or both parties may find an interest in stipulating for this privilege, and neither may be disposed to make to, or require from, the other, the surrender of any right as its consideration. What shall restrain independent nations from making such a compact? And how is their intention to be communicated to each other or to the world, so properly as by the compact itself? "If reason can furnish no evidence of the indissolubility of the two maxims, the supporters of that proposition will certainly derive no aid. from the history of their progress, from the first attempts at their introduction to the present moment. "For a considerable length of time they were the companions of each other, not as one maxim consisting of a single indivisible principle, but as two stipulations, the one, in the view of the parties, forming a natural and obvious consideration for the other. The celebrated compact termed the armed neutrality attempted to effect by force a great revolution in the law of nations. The attempt failed, but it made a deep and lasting impression on public sentiment. The character of this effort has been accurately stated by the counsel for the claimants. Its object was to enlarge, and not in any thing to diminish, the rights of neutrals. The great powers, parties to this agreement, contended for the principle that free ships should make free goods, but not for the converse maxim; so far were they from supposing the one to follow as a corollary from the other, that the contrary opinion was openly and distinctly avowed. The King of Prussia declared his expectation that in future neutral bottoms would protect the goods of an enemy, and that neutral goods would be safe in an enemy bottom. There is no reason to believe that this opinion was not common to those powers who acceded to the prin ciples of the armed neutrality. "From that epoch to the present [1815], in the various treaties which have been formed, some contain no article on the subject, and consequently leave the ancient rule in full force. Some stipulate that the character of the cargo shall depend upon the flag, some that the neutral flag shall protect the goods of an enemy, some that the goods of a neutral in the vessel of a friend (!) shall be prize of war, and some that the goods of an enemy in a neutral bottom shall be safe, and that friendly goods in the bottom of an enemy shall also be safe. "This review, which was taken with minute accuracy at the bar, certainly demonstrates that in public opinion no two principles are more distinct and independent of each other than the two which have been contended to be inseparable." Marshall, C. J.; The Nereide, 9 Cranch., 418. See The Julia, 8 Cranch, 181. Goods, the property of merchants actually domiciled in the enemy's country at the breaking out of the war, are subject to capture and confiscation as prize. The Mary and Susan, 1 Wheat., 46. Property in transit from a belligerent to a neutral is subject to capture and condemnation, if it has not vested at the time of the capture in the neutral consignees. The St. Jose Indiano, ibid., 208. Covering belligerent property by neutral papers is not contrary to the law of nations, and, in neutral courts, does not invalidate contracts made in relation to such property. De Valengin v. Duffy, 14 Pet., 282. An enemy's commerce under neutral disguises has no claim to neutral immunity. The Bermuda, 3 Wall., 514. |