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 was 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 establish 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 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. (b) The introduction of

(a) The Cygnet, 2 Dods. 299, s. p.

(b) It was stipulated in those American treaties that, as between the parties, free

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 *131 sacrificing the 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, unless it be conceded also by the enemy of the belligerent to the same neutral flag. (a)

But whatever may be the utility or reasonableness of the neutral claim, under such a qualification, I should apprehend the belligerent right to be no longer an open question; and that the authority and usage on which that right rests in Europe, and the

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 were [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.

(a) Letter of Mr. Adams, Secretary of State, to Mr. Anderson, 27th May, 1823; President's Message to the Senate, of 26th December, 1825, and to the House of Representatives, March 15th, 1826.

long, explicit, and authoritative admission of it by this country, have concluded us from making it a subject of controversy; and that we are bound, in truth and justice, to submit to its regular exercise, in every case, and with every belligerent power who does not freely renounce it.

It has been a matter of discussion, whether the captor of the enemy's vessel be entitled to freight from the owner of the neutral goods found on board, and restored. Under certain circumstances, the captor has been considered to be entitled to freight, even though the goods were carried to the claimant's own country, and restored: and he clearly is entitled to freight, if he performs the voyage, and carries the goods to the port of original destination. In no other case is freight due to the captor; and the doctrine of pro rata freight is entirely rejected, because it would involve a prize court in a labyrinth of minute inquiries and considerations, in the endeavor to ascertain, in every case, the balance of advantage or disadvantage which an interruption and loss of the original voyage, by capture, might have produced to the owner of the goods. (b)

132

*In the case of the Nereide, (a) the Supreme Court of the United States carried the principle of immunity of neutral property on board an enemy's vessel to the extent of allowing it to be laden on board an armed belligerent cruiser; and it was held, that the goods did not lose their neutral character, not even in consequence of resistance made by the armed vessel, provided the neutral did not aid in such armament or resistance, notwithstanding he had chartered the whole vessel, and was on board at the time of the resistance. The act of arming was the act of the belligerent party, and the neutral goods did not contribute to the armament, further than the freight, which would be paid if the vessel was unarmed; and neither the goods nor the neutral owner were chargeable for the hostile acts of the belligerent vessel, if the neutral took no part in the resistance. A contemporary decision of an opposite character, on the same point, was made by the English High Court of Admiralty in the case of the Fanny; (b) and it was there observed, that a

(b) Bynk. Q. J. Pub. b. 1, c. 13; The Fortuna, 4 C. Rob. 278; The Diana, 5 C Rob. 67; Vrow Anna Catharina, 6 C. Rob. 269.

(a) 9 Cranch, 388.

(b) 1 Dods. 443.

neutral subject was at liberty to put his goods on board the merchant vessel of a belligerent; but if he placed them on board an armed belligerent ship, he showed an intention to resist visitation and search, by means of the association, and, so far as he does this, he was presumed to adhere to the enemy, and to withdraw himself from his protection of neutrality. If a neutral chooses to take the protection of a hostile force, instead of his own neutral character, he must take (it was observed) the inconvenience with the convenience, and his property would, upon just and sound principles, be liable to condemnation along with the belligerent vessel.

The question decided in the case of the Nereide is a very important one in prize law, and of infinite importance in its practical results; and it is to be regretted that the decisions of two courts of the highest character, on such a point, *should have been in direct contradiction to each other. *133 The same point afterwards arose, and was again argued, and the former decision repeated in the case of the Atalanta. (a) It was observed, in this latter case, that the rule with us was correct in principle, and the most liberal and honorable to the jurisprudence of this country. The question may, therefore, be considered here as at rest, and as having received the most authoritative decision that can be rendered by any judicial tribunal on this side of the Atlantic.

(a) 8 Wheaton, 409.

[141]

LECTURE VII.

OF RESTRICTIONS UPON NEUTRAL TRADE.

THE principal restriction which the law of nations imposes on the trade of neutrals, is the prohibition to furnish the belligerent parties with warlike stores and other articles which are directly auxiliary to warlike purposes. Such goods are denominated contraband of war; but in the attempt to define them the authorities vary, or are deficient in precision, and the subject has long been a fruitful source of dispute between neutral and belligerent nations.

1. Contraband of War. In the time of Grotius, some persons contended for the rigor of war, and others for the freedom of commerce. As neutral nations are willing to seize the opportunity which war presents of becoming carriers for the belligerent powers, it is natural that they should desire to diminish the list of contraband as much as possible. Grotius distinguishes (a) between things which are useful only in war, as arms and ammunition, and things which serve merely for pleasure, and things which are of a mixed nature, and useful both in peace and war. He agrees with other writers in prohibiting neutrals from carrying articles of the first kind to the enemy, as well as in permitting the second kind to be carried. As to articles of the third class, which are of indiscriminate use in peace and war, as money, provisions, ships, and naval stores, he says that they are sometimes lawful articles of neutral commerce, and sometimes not;

and the question will depend upon circumstances existing *136 at the time. They would be contraband if carried to a besieged town, camp, or port. In a naval war, it is admitted that ships and materials for ships become contraband, and (a) B. 3, c. 1, sec. 5.

1 The Peterhoff, 5 Wall. 28, 58; s. c. Blatchf. Pr. 463; Pistoye & Duverdy, & i. tit. vi. ch. 2, § 3, p. 392.