one.

Julia, 8 Cranch. 181: The Nereide, 9 Cranch, 388; The Ariadne, 2 Wheat., 143. See The Caledonian, 4 Wheat., 100: The Hart, 3 Wall.. 559; S. C., Bl. Pr. Ca. 379. That shipping goods in an enemy's ship gives presumption that goods belong to enemy, see The London Packet, 1 Mason, 14; The Amy Warwick, 2 Blatch. 635. On the other hand, the executive department of the Government, to use Mr. Marcy's language (Mr. Marcy to Mr. Mason, Aug. 7, 1850), "has strenuously contended that free ships made free goods, articles contraband of war excepted," and that this was then regarded by the Executive as the generally accepted rule is evidenced by Mr. Marcy's statement in the next sentence, that "Great Britain is believed to be almost the only maritime power which has constantly refused to regard this as a rule of international law." Even in the strain of the late civil war. Mr. Seward, when proposing to accede to the declaration of Paris on this point, did so on the ground that the declaration which the United did not make a new rule, but established an old States has maintained as a part of international law. This difference of opinion between the judicial and executive departments of the Government may be attributed, in the main, to the distinct political training of the two departments. The executive, from the time of the administration of Mr. Jefferson, inclined to the liberal view of international law which became then prevalent among political economists; and though Mr. Jefferson, when Secretary of State, at first thought the weight of authority was the other way, he changed his mind as to this, and took the lead, as President, in recommending as the best rule, that free ships should make free goods. The same doctrine was vindicated with great elaboration by Mr. Madison, and has been accepted, more or less conspicuously, whenever occasion arose, by succeeding Presidents. While, however, the executive department continued to accept these distinctive views of international law, of which Mr. Jefferson and Mr. Madison were the exponents, it was otherwise with the judiciary. In part this may be attributed to the strong antagonism of Chief Justice Marshall to Mr. Jefferson, and to the scheme of public law of which Mr. Jefferson was the leading exponent. But aside from this, and aside from the strong bias toward English law and English precedent, which arose from the prior political bias of that great judge, and of his earlier associates, it is impossible not to forget the effect produced, even on professional minds entirely impartial, by the reverence and affection all American lawyers must feel for English judicial literature. If this be the case now-if such literature charm us now, often influencing our judgment, amid the great mass which we possess of legal literature of our own-how much greater must have been the influence when the sole text book at hand was Blackstone, and when Sir William Scott's attractive and lucid judgments were the only sources from which prize law could be studied in the English tongue,

Note of Dr. Wharton, Wharton's Int. Law Digest, 111, 309.

But in 1854 it was felt that it was difficult for allied states to apply different legal theories in a common war, and an agreement for identical action was come to by Great Britain and France, under which the principle of the immunity of enemy's goods in neutral ships was provisionally accepted by the former. On the conclusion of the Treaty of Paris the same principle was accepted by the parties

to it in a Declaration, which was intended to form the basis of a uniform doctrine on maritime law, and to which all states not represented at the Congress were afterwards invited to accede. The only countries possessing a sea coast which, up to the present time, have withheld their formal adherence to the Declaration are the United States, Spain, Mexico, and Venezuela. But the United States announced at the beginning of the Civil War that they would give effect to the principle during the continuance of hostilities.

Although, therefore, the freedom of enemy's goods in neutral vessels is not yet secured by a unanimous act, or by a usage which is in strictness binding on all nations, there is little probability of reversion to the custom which was at one time universal, and which till lately enjoyed a superior authority.

Hall, p. 717.

The Armed Neutralities in which the Baltic powers confederated themselves in 1780 and 1800 adopted the rule" free ships free goods," and the refusal of England to assent to it became one of the chief sources of the charge so widely made against her on the continent of exercising an unjust domination over the sea. At the outbreak of the Crimean war in 1854 the different principles of England and France as to maritime law made it necessary for them to enter into a compromise enabling them to act as allies on a common system, and the terms arranged were the assent of Great Britain to the rule free ships free goods" without the corollary enemy ships enemy goods." At the close of the war this compromise received the concurrence of the other great powers of Europe, since extended to almost all the world, in the Declaration of Paris, 16 April, 1856, which begins with a preamble amply justified by the history which we have passed in review.

"Considering," it says, "that maritime law in time of war has long been the subject of deplorable disputes;

"That the uncertainty of the law of the duties in such a matter gives rise to differences of opinion between neutrals and belligerents which may occasion serious difficulties and even conflicts;

That it is consequently advantageous to establish a uniform doctrine on such a point;

"[The signatories] have adopted the following solemn declara

An agitation was long maintained in England with the view of inducing this country to withdraw from the Declaration of Paris, which it was not within her power to do, that document being really a convention. And had it been possible to do so, the signature of England to the statement in the preamble, that the law was previously uncertain, might have been quoted against any attempt on her part to fall back on the rules of the Consolat as being law in the absence of convention. The United States, which refused to become a party to the Declaration because it did not completely exempt. enemy property as such from capture at sea, covered by that refusal the narrower ground of enemy property under a neutral flag: and neither they nor Spain in their war of 1898, nor Japan and Russia

in their war of 1904, acted contrary to the Declaration. We may therefore conclude that enemy ships and enemy goods on board them are now, by international law, the only enemy property which, as such, is capturable at sea. That result is the only one conformable to principle, for the assimilation of ships to territory is now sufficiently established to make it no longer possible to ignore the fact that the invasion of a neutral ship, which is not reasonably believed to be offending against any law, is the invasion of a field in which innocent neutral authority is exclusive.

Westlake, vol. 2, p. 145.

The pure law-making treaties constitute a statute book of the law of nations. The first of them is the Declaration of Paris of 1856. It laid down four rules for the guidance of states when engaged in warfare at sea; and was negotiated by the powers represented at the great Conference of Paris, which settled for a time the near-Eastern question, and concluded the Crimean War, by the Treaty of Paris of 1856. They were seven in number; but five out of the seven were Great Powers. Further, the declaration aimed at universality by making provision for the adhesion of states unrepresented at the conference. The great majority signed immediately. Others have done so since, till at the present time only four signatures are wanting. Moreover, the powers that have refrained from signing have acted, when belligerents, as if they had signed, and have received, when neutrals, the same treatment as signatory powers. Thus the declaration has behind it the express consent of almost all civilized states and the tacit consent of the remainder. Nothing more is wanted to make it authoritative. It is an international statute, and others have followed it.

Lawrence, p. 45.

The next class of treaties we have to consider consists of those which stipulate avowedly for a new rule or rules between the contracting parties. They are signed by two or three states only, and are meant to establish in their mutual intercourse some principle of action not in general use. Thus they are evidence of what International Law is not, rather than of what it is; for if the rules they lay down had been embodied in it there would have been no need of special stipulations in order to obtain the benefit of them. The Treaty of 1785 between the United States and Prussia contains an agreement of the kind under consideration. By the thirteenth article the contracting powers declared that in case one was at war while the other was at peace, the belligerent would not confiscate contraband goods carried by a vessel of the neutral, but would be content to detain them instead. The common law of nations gives the right of confiscation, as the negotiators on both sides well knew. And because they knew it, they entered into stipulations to override the ordinary rule and substitute for it one that they preferred. It is clear that treaties of this kind are not sources of International Law. Only in one case can they become so, and that is when the new rule first introduced by one of them works so well in practice that other states adopt it. If they take it up one by one till all observe it, the first treaty in which it appears is its source, though a long interval of time may separate its original appearance from its final triumph.

An instance of this is to be found in the history of the famous rule free ships, free goods. The first treaty between Christian powers which contains it was negotiated between Spain and the Netherlands in 1650; and is therefore its source, though the rule was obliged to wait two centuries before it received, in the Declaration of Paris of 1856, such general acceptance as to make it part and parcel of the public law of the civilized world.

Lawrence, pp. 106, 107; Dumont, Corps Diplomatique, vol. vi, part I, p. 571.

Enemy goods found on board neutral ships must now be regarded as free from capture. * ** * In all ordinary cases the rule is that the flag covers the cargo, or, in other words, that enemy merchandise is safe when laden on board a neutral vessel. The old rule of the Consolato del Mare gave the captors a right to seize it, though the ship which carried it was released and received payment for its services. But the movement which began in the seventeenth century in favor of the principle summed up in the maxim "free ships, free goods" gained a decisive victory in 1856, at the close of the Crimean War. Its object was practically attained when Great Britain, which had hitherto supported the older rule, agreed to substitute the new one for it, and signed the Declaration of Paris, the second article of which set forth that "the neutral flag covers enemy's goods with the exception of contraband of war." Since then the vast majority of civilized states have given their formal adhesion to the Declaration, and those who have not have nevertheless observed its rules as belligerents, and accepted the benefit of them from belligerents when neutral. The uninterrupted practice of more than fifty years, the express assent of nearly every civilized state, and the almost unanimous support of jurists make the articles, including the second, as binding as anything in International Law which does not rest on the plainest dictates of humanity. We come, therefore, to this, that in cases of ordinary trade a belligerent may seize the goods of enemies at sea only when they are navigating in enemy vessels.

Lawrence, pp. 460, 461.

The freedom of enemy property from molestation under the flag of a friend is a concession made to neutrals; and in respect of it two questions have been raised. The first asks whether belligerents who have signed the Declaration of Paris are bound to give the benefit of it to neutrals who have refused their signatures. We reply that such a privilege can hardly be refused, in spite of the statement in the last clause of the Declaration that "it is not and shall not be binding except between those powers who have acceded or shall accede to it." For in the period during which it has been in existence, it has been observed in all maritime conflicts. The unbroken usage of more than half a century can, therefore, be pleaded on behalf of the binding nature of its rules, and surely this is enough to establish them as International Law on the basis of general consent, quite apart from any question of formal accession to a law-making document. Nonsignatory neutrals, who have themselves when belligerents acted upon the principle that the flag covers the cargo, would have reason to feel aggrieved should a power at war make the fact that they have not acceded to the Declaration an excuse for depriv

ing their commerce of the protection it affords. In the Franco-German war of 1870-1871 both sides applied its principles to the property of American and Spanish subjects, though neither the United States nor Spain had signed it; and when the latter powers were themselves belligerents in 1898, they gave the benefit of the Declaration to all neutrals. A similar answer must be made to the further inquiry whether, when one belligerent has signed the Declaration of Paris and the other has not, the former is bound to act upon it in dealing with neutrals whose governments have acceded to it. There is room for doubt if we confine ourselves to the mere words of the document; but when we come to examine practice we find a strong tendency in favor of the more liberal interpretation. When England and France were at war with China, a non-signatory power, in 1860, they applied the second and third articles of the Declaration to neutral trade; and Chili and Peru did the same when they were allied against Spain in 1885. Indeed, it is far more likely that the belligerent who has not acceded to the Declaration will be induced to observe its rules than that the belligerent who has acceded to them will feel free to ignore them. The war at the end of the nineteenth century between China and Japan affords an apt illustration. From its beginning in 1894 to its end. China, the nonsignatory power, made no attempt to capture Japanese goods under a neutral flag or neutral goods under a Japanese flag, while Japan, the signatory power, showed no sign of a wish to ignore its obligations toward neutrals on the plea that they were not shared by China. The notion of a return to the old order is an idle dream. Those who entertain it have failed to grasp either the power of modern commerce or the strength of the moral ideas that tend to restrict the destructiveness of warfare. What neutral interests were able to obtain in 1856 they will be able to retain in future emergencies. We may adopt with confidence the view of one of the greatest of modern authorities, and hold that "the principle that the flag covers the cargo is forever secured."

Lawrence, pp. 666, 667; Twist, Belligerent Right on the High Seas, p. 8. Report of Drafting Committee of the Naval Conference of 1908–1909, eh. vi.; Mahan, Influence of Sea Power on History, Cr. I, p. 84.

Since, with the exception of a few States such as the United States of America, Colombia, Venezuela, Bolivia, and Uruguay, all members of the Family of Nations are now parties to the Declaration of Paris, it may well be maintained that the rules quoted are general International Law, the more so as the non-signatory Powers have hitherto in practice always acted in accordance with those rules.

Oppenheim, Vol. 2, pp. 220-221.

A consequence of the now recognized freedom of neutral commerce with either belligerent is, firstly, the rule, enacted by the Declaration of Paris of 1856, that enemy goods, with the exception of contraband, on neutral vessels on the Open Sea or in enemy territorial waters may not be appropriated by a belligerent.

Oppenheim, Vol. 2, p. 385.

Long experience has shown that, in general, when the principal powers of Europe are engaged in war the rights of neutral nations