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without waiting for the recognition of the exemption of all privato property. This failed, because Great Britain and France insisted upon the addition of an explanatory clause, intended to meet their own possible relations with the vessels of war or privateers of the rebel Confederacy, to which the United States Government would not agree.
The circular of Mr. Cass, Secretary of State, of 29th June, 1839, on the Declaration of Paris, while admitting the right of nations to stipulate for the reciprocal protection of each other's goods found in neutral vessels when they shall be at war with each other, and so indirectly to relieve neutral vessels from annoyance and loss, adds, “ Those neutral nations which are prevented from being parties to such an engagement, have a right to insist that it shall not necessarily work to their injury. This dictate of justice would be palpably violated in the case of the Uniteil States, should this protecting clause of the Paris conference not enable these ves-els, when neutral, to shield from capture the property of belligerents carried as freight."
On the other hand, a writer in the Edinburgh Review (No. 233), says, as to the principle of the second Article of Paris, " The United States have acquired no right to invoke it against this country. It would rest in the option of England either to adhere to the old rules of maritime warfare, in a war with the United States, or to maintain the principles of the Declaration of Paris." The last clause of the Declaration is in these words: “ The present Decla ration is not and shall not be binding, except between those powers who have acceded or shall accede to it."
If ; nation, party to the Declaration, is at war with one which is not, the former is not bound to abandon its right to take its enemy's gooils from l'essels of neutral nations which are parties to the Declaration; and as the stipulation is made, not from any doubt that, as between belligerents only, such captures are the natural and proper results of war, but for the benefit of neutrals vexed thereby, all parties to the Declaration, when they are neutrals, are in danger of losing the benefits of it. If a nation party to the Declaration, being at war with one which is not, is at liberty to disregard the article, neutrals who are parties can not enforce it by resisting search, or by reprisals, or otherwise. In case of a war between two nations, boti being parties to the Declaration, if either disregards it, can the other retaliate? If so, does not he also violate the conventional right of the neutral, a party with him to the Declaration, from whose vessel he takes his enemy's property in the way of retaliation? Does that make a breach of treaty and casux belli? If either belligerent violates the rule, and the neutral power, being also party to the treaty, does not resist the act and vindicate its right under the Declaration, does it not give the other belligerent the right to complain, and to seek that summary and rapid redress which the exigencies of war often require or justify?
The assertion of these rights and obligations, and the real or pretended suspicion that the opposite belligerent or a neutral, parties to the convention, do not observe the convention, or insist on its observance, together with the pressure of national exigencies, have been found sufficient, whether as causes or pretexts, to render uavailing all former compacts for the freedom of enemy's goods in neutral vessels. As to the Declaration of Paris, however, it may be said that the
number and power of the nations parties to it, with the increase of the influence of commerce, and of capital interested in neutral trade. may be suflicient to sustain it, even if it does not, by the accession of the United States, grow into international law. See the debates on the Declaration of Paris and the agreement of 1854, in the House of Commons, July 4, 1854. (Hansard, cxxxiv 1098); and in the House of Lords, May 22, 1856 (ibid., cxlii +82).
During the civil war in the United States, the French Government felt uneasy lest France should suffer by reason of the fact that, under her treaty of 1800, the United States might condemn French goods in rebel vessels, while it would not do so with the goods of other nations with whom the United States had no such treaty. This no doubt, added a motive for the French to unite with England to arrange the difficulties that lay in the way of the accession of the · United States to the Declaration of Paris. Mr. Seward's letter to Mr. Adams of 7th September, 1861, in which he breaks off the negotiations for an accession to the Declaration of Paris, still declares that the United States, in this war, will adopt the policy. “ according to our traditional principles, that Her Majesty's flag covers enemy's goods not contraband of war. Goods of Her Majesty's subjects not contraband of war are exempt from confiscation, though found under a (lisloyal flag.” (Dipl. Corr. 1861, p. 143.) And, in his letter to Mr. Dayton of Sept. 10, 1861, on the same subject, Mr. Seward says, “ We have always practiced on the principles of the Declaration. We did so, long before they were adopted by the Congress of Paris, so far as the rights of neutral or friendly States are concerned. While our relations with France remain as they now are, we shall continue the same practice none the less faithfully than if bound to do so by a solemn convention." (Dipl. Corr. 1861, p. 251.)
The British and French Governments, through their consuls at Charleston, made an arrangement with the ('onfederacy, by which the Confederates agreed to adopt the third, fourth, and fifth Articles of Paris, but not the first. (British Parl. Papers, North America, No. 3.) And, in his letter to Lord Lyons on the Trent affair, Mi. Seward refers to the fact that the United States had, in this war, made known its intention to act in accordance with the second and third articles of the Declaration of Paris.
Igun, Mr. Seward, in a letter to Mr. Hülsemann of Aug. 2.. 1861, requests him to answer to the questions of Count Rechberg, that the United States, in its relations with Austria, “ does adopt and will apply the principles thus recited” [the second, third, and fourth Articles of Parisi. (Dipl. Corr. of 1861. p. 191.)
Again, in a letter to Baron Gerolt of July 16, 1861, Mr. Seward, referring to the second and third Articles of Paris, says, “The undersigned has the pleasure of informing Baron Gerolt, by authority of the President of the United States, that the government cheerfully declar's its assent to these principles, in the present case: and they will be fully observed by this government in its relations with Prussia.” (Dipl. Corr. 1861. p. 41.)
Indeed, the United States made it known to the commercial powers of Europe that they were ready and desirous to adopt the second, third, and fourth Articles of Paris; that although they preferred them with the " Marer Amendment." and without the first article, they were willing to adopt them as they stood. They were
repelled, as has been shown (note 173, ante) by Great Britain and France insisting on a special restriction clause to meet the case of possible complications with the Confederates. Still, when this negotiation broke off, the United States made known its intention to follow the second, third, and fourth rules of the Declaration, in the war. It has been suggested that the President could not, by following the second Article, vary the law of nations so as to control the decisions of our prize courts. That is true. Those courts could be directed only by a statute of Congress or a treaty, and, in the absence of either, must look solely to the law of nations for their rule in a pending war; but the executive can carry out its foreign policy by instructions to the navy not to capture in such cases, and, if captures should be made, by directing a restitution before adjudication. No case is reported of a condemnation, in opposition to the second or third Articles of Paris, during the civil war.
Dana's Wheaton, Note 223. The second article of the Declaration of Paris of 1856 forms a new cra in the history of this doctrine of " free ships, free gocds." *
While the government of the United States has endeavored to introduce the rule of " free ships, free goods," by conventions, her courts have always decided that it is not the rule of war; and her diplomatists and her text-writers—with singular concurrence, considering the opposite diplomatic policy of the country-have agreed to that position.
Dana's Wheaton. Note 223. Contra.
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 principle. The rule, thuis modified, was applied to their treaties with Colombia in 1824, with Brazil in 1828, with Chile in 1832, with Mexico in 1831, etc., etc. In no case have they concluded any treaty sustaining a different principle, except that of 1794, with England.
Hallerk. pp. 635, 636. More than a year prior to this declaration sof Paris), the President of the United States had submitted, not only to the powers represented in the congress of Paris, but to all other maritime nations, tio prepositions which were substantially the same as those adopted. viz: “1. That free ships make free goods, that is to say, that the effects or goods belonging to subjects or citizens of a power or stato at war are free from capture and confiscation when found on board of neutral vessels, with the exception of articles contraband of war." “ 2. That the property of neutrals on board an enemy's ressel is not
subject to confiscation, unless the same be contraband of war.” The
Halleck, p. 638.
It is an established rule of the law of prize, that all goods found in an enemy's ship is presumed to be enemy's property-res in hostium uavibus, pruesimmuntur esse hostium doner probetur. The evidence required to repel this presumption, depends upon the particular character of the case. If the character of the ship is certainly hostile, the neutral character of the goods must be shown by documents on board at the time of capture. If these are insuflicient, further proof is never allowed, and the penalty of forfeiture attaches as a matter of course. “ It has been truly observed," says Mr. Duer, " that any other course would subject the prize tribunals to endless impositions and frauds, and enable the enemy, thus obtaining the benefit of other proof, to evade, by supplying the documentary evidence, the just rights of the captör.“ Tithongh it is the duty, in all cases, of a neutral claimant to establish his claim by positive evidence, it is only when the character of the ship is certainly hostile that the presumption of the hostility of the goods can not be refuted by evidence additional to the documents found on the ship. In other cases, a reasonable time is allowed for the production of further proof, and it is only upon the failure to produce such proof, or its unsatisfactory nature when produced, that the court proceeds to a condemnation.
Halleck, p. 639; Duer, on Insurance, vol. 1, pp. 334, 33.7. We may say, in general, that until very recent times tro rules have contended with one another-the rule that the nationality of
property on the sea determines its Tiability to capture, or neutral property is safe on the sea and enemy's property may be taken wherever found, and the rule that the nationality of the ressol determines the liability to capture, or that the flag covers the cargo. By the first rule the neutral might safely put his goods into any vessel which offered itself, but could not convey the goods of his friend, being one of the helligerents, without the risk of their being taken by the other. By the second, when once the nationality of the ship was ascertained to be neutral, it went on its way with its goods in safety, but if it belonged to the enemy it exposed neutral goods on board as well as other to be taken. This latter rule consists of two parts, that free ships make free goods, and that enemy's ships make goods hostile, but the two are not necessarily, although part of the same principle, connected in practice; the former may be received without the latter.
It was a thing of secondary importance both for the neutral and for a belligerent, being a naval power, how the rules should shape
themselves in regard to the neutral's goods in hostile bottoms. And his own goods on board his own vessel were freely admitted to be safe. Hence justice and a spirit of concession to the neutral united in favor of the rule that his goods were safe by whatever vessel conreyed; although not safe from sundry inconveniences growing out of search and the capture of the hostile conveyance.
On the other hand, it was of great importance to the belligerent that the flag should not cover his enemy's goods, or that free ships should not make goods free; for thus, much of his power at sea to plunder er annoy his enemy would be taken away. To the neutral, the opposite rule, that free ships should make goods free, was of great importance; for the carrying trade, a part of which war would in other ways throw into his hands, would thus be vastly angmented. But the belligerent's interest on the whole prevailed. The nations, especially Great Britain, which had the greatest amount of commerce, had also the greatest naval feree, with which they could protect themselves and plunder their foes, and therefore felt small need in war of hiding their goods in the holds of neutral ships. Thus, for a long time the prevailing rule was that neutral goods are safe under any flag, and eru my's goods unsafe under my fing. But at length neutral interests and the interests of peace preponderated; and the parties to the treaty of Paris in 1836, Great Britain among the rest, adopted for them-elves the rule which will be valid in all future wars and is likely to be universal, that free ships are to make goods free. Likely to be universal, we say, unless a broadler rule shall exempt all private property on the sea engaged in law ful trade from capture.
Woolsey. pp. 301, 302.
The true policy of the United States is to come under the operation of the four articles as soon as possible. The refusal was based on the utility of privateers in saving the expense of maintaining a large nary. But if a war should break out between the United States and any of the nations which signed the four articles, that is with any, excepting one or two, of the important civilized nations of the world, we could have no benefit from the four articles, and privateers could swarm the sea in pursuit of our merchant vessels. Nor could we, if we were neutrals, carry the goods of either enemy upon our vessels, for the four articles do not apply except to the signers of them. In war, especially with a leading commercial power, that would happen again which happened in the late war of the secession, when 71.3 vessels measuring 480,882 tons were transferred to British capitalists. Such was the result of a paltry naval force upon our shipping interest. On the other hand, by acceding to the four articles, we should be in a better position to aid in carrying through the principle of the entire exemption of all private property from capture, which shonld be engaged in innocent commerce. And that point once reached, what should we want of privateers, or of a large regular navy? Our position in relation to the powers of Europe would generally be neutral, but now we cut ourselves off from the advantages of neutrality, which are constant, on account of a possible advantage of a very questionable character.
Woolsey, p. 314, note.
-:lice under neutral flao has been sustained in The