The two High Contracting Parties recognize as permanent and immutable the following principles, to wit:

*

2d. That the property of neutrals on board an enemy's vessel is not subject to confiscation, unless the same be contraband of war. They engage to apply these principles to the commerce and navigation of all such Powers and States as shall consent to adopt them on their part as permanent and immutable.

Convention as to Rights of Neutrals at Sea, concluded between the United States and Russia, July 22, 1854, Article I.

The two high contracting parties recognize as permanent and immutable the following principles:

That the property of neutrals on board of an enemy's vessel is not subject to detention or confiscation, unless the same be contraband of war; it being also understood that, as far as regards the two contracting parties, warlike articles destined for the use of either of them shall not be considered as contraband of war.

The two high contracting parties engage to apply these principles to the commerce and navigation of all Powers and States as shall consent to adopt them as permanent and immutable.

Convention Declared the Principles of the Rights of Neutrals at Sea, concluded between the United States and Peru, July 22, 1856, Article 1,

The two high contracting parties recognize as permanent and immutable the following principles, to wit:

2d. That the property of neutrals on board an enemy's vessel is not subject to confiscation, unless the same be contraband of war.

* * * The contracting parties engage to apply these principles to the commerce and navigation of all such powers and States as shall consent to adopt them as permanent and immutable.

Treaty of Peace, Friendship, Commerce and Navigation concluded between the United States and Bolivia, May 13, 1858, Article XVI.

It is also a principle of the law of nations relative to neutral rights, that the effects of neutrals, found on board of enemy's vessels, shall be free: ** * * The principle is to be met with the Consolato del Mare, and the property of the neutral is to be restored without any compensation for detention, and the other necessary inconveniences incident to the capture. The former ordinances of France, of 1543, 1585, and 1681, declared such goods to be lawful prize; and Valin justifies the ordinances, on the ground that the neutral, by putting his property on board of an enemy's vessel, favors the enemy's commerce, and agrees to abide the fate of the vessel. But it is fully and satisfactorily shown, by the whole current of modern authority, that the neutral has a perfect right to avail himself of the vessel of his friend, to transport his property; and Bynkershoek has devoted an entire chapter to the vindication of the justice and equity of the right.

Kent, Vol. 1, p. 137; Comm. b. 3, tit. 9, des Prises, art. 7; Consulat de la
Mer, par Boucher, ii. c. 276, sec. 1012, 1013; Vattel. b. 3, c. 7, sec. 116;
Bynk. c. 13.

* the belligerent flag communicates no hostile character to neutral property. States have changed this simple and natural principle of the law of nations, by mutual compact, in whole or in part, according as they believed it to be for their interest; but the one maxim, that free ships make free goods, does not necessarily imply the converse proposition, that enemy ships make enemy goods. The stipulation, that neutral bottoms shall make neutral goods, is a concession made by the belligerent to the neutral, and gives to the neutral flag a capacity not given to it by the primitive law of nations. On the other hand, the stipulation subjecting neutral property, found in the vessel of an enemy, to confiscation as prize of war, is a concession made by the neutral to the belligerent, and takes from the neutral a privilege he possessed under the pre-existing law of nations; but neither reason nor usage renders the two concessions so indissoluble, that the one cannot exist without the other.

Dana's Wheaton, pp. 576-581.

The third article, [of the Declaration of Paris] that neutral goods not contraband are not seizable under the flag of an enemy, is of little importance, as that was already the law of nations; and the article had only the effect of abrogating clauses to the contrary in subsisting treaties between any of the powers that were parties to it.

Dana's Wheaton, Note 223.

They [the United States] have invariably opposed the rule that enemy ships make enemy goods, and their supreme court, as has already been stated, refused to admit it, even against a neutral whose law of prize would subject the property of American citizens to condemnation, when found on board the vessels of her enemy. Halleck, p. 636; The Nereide, 9 Cranch, 388.

Question whether enemy's "armed" vessels cover neutral goods.

While the neutral can put his goods on the merchant vessel of either of the belligerents in safety, it has been made a question whether he can make use of their armed vessels for that purpose. The English courts have decided against, and the American courts in favor of the neutral's using such a conveyance for his goods. On the one hand, it may be said that in this act an intention is shown to resist the right of search, and the inconveniences of capture, and of transportation to a port such as the captor may select. On the other hand, the neutral, his goods being safe already, has perhaps no great motive to aid in resistance, for the complete loss of his goods is endangered by an armed engagement. If, however, the neutral can be shown to have aided in the arming of the vessel, it is just that he should suffer.

The decision of this case, as Chancellor Kent observes, is of very great importance. Yet with the discontinuance of privateering such cases would cease, for few ships will be armed with the purpose to resist public ships of war.

Woolsey, p 318; The Fanny, 1 Dodson's Adm. Rep. 443; The Nereide, 9
Cranch, 388; Atalanta, 3 Wheaton, 415.

Down to the time of the First Armed Neutrality a large number of treaties, for the same reason as in the preceding century, generally stipulated for the condemnation of neutral merchandise in

belligerent vessels; but they seem to have had little effect in changing the bent of opinion in the direction of the practice for which they stipulated. Writers so different as Vattel and Hübner could on this point find themselves in accord, and England was of one mind with the members of the Armed Neutrality. It was impossible for neutrals to ask more than England already spontaneously gave to them, and accordingly the programme of the Armed Neutralities contained no articles on the subject. But in the present century the confiscation of neutral goods reappears in the treaties made by France and the United States, set off as usual against the freedom of enemy's goods in neutral vessels; though at the same time the United States have always distinctly acknowledged that under international common law the goods of neutrals in enemy's vessels are free.

Hall, pp. 742, 743; Vattel, liv. iii, chap. vii, sec. 116; Mr. Pickering to Mr. Pinckney, American State Papers, i, 559.

Incidental losses of neutral owner.

It is to be noticed that though neutral property in enemy ships possesses immunity from confiscation, the neutral owner is not protected against loss arising incidentally out of the association with belligerent property in which he has chosen to involve his merchandise. Just as a neutral individual in belligerent territory must be prepared for the risks of war and cannot demand compensation for loss or damage of property resulting from military operations carried on in a legitimate manner; so, if he places his property in the custody of a belligerent at sea, he can claim no more than its bare immunity from confiscation, and he is not indemnified for the injury accruing through loss of market and time, when it is taken into the captor's port, or in some cases at any rate for loss through its destruction with the ship.

Hall, pp. 743, 744.

Rights of neutral cargo-owner when vessel destroyed.

In 1872 the French Prize Court gave judgment in a case, arising out of the war of 1870-1, in which the neutral owners of property on board two German ships, the Ludwig and the Vorwärts, which had been destroyed instead of being brought into port, claimed restitution in value. It was decided that though 'under the terms of the Declaration of Paris neutral goods on board an enemy's vessel cannot be seized, it only follows that the neutral who has embarked his goods on such vessel has a right to restitution of his merchandise, or in case of sale to payment of the sum for which it may have been sold; and that the Declaration does not import that an indemnity can be demanded for injury which may have been caused to him either by a legally good capture of the ship or by acts of war which may have accompanied or followed the capture'; in the particular case 'the destruction of the ships with their cargoes having taken place under orders of the commander of the capturing ship, because, from the large number of prisoners on board, no part of the crew could be spared for the navigation of the prize, such destruction was an act of war the propriety of which the owners of the cargo could not call in question, and which barred all claim on their part to an indemnity.'

It is to be regretted that no limits were set in this decision to the right of destroying neutral property embarked in an enemy's ship. That such property should be exposed to the consequences of necessary acts of war is only in accordance with principle, but to push the rights of a belligerent further is not easily justifiable, and might under some circumstances amount to an indircet repudiation of the Declaration of Paris. In the case for example of a state the ships of which were largely engaged in carrying trade, a general order given by its enemy to destroy instead of bringing in for condemnation would amount to a prohibition addressed to neutrals to employ as carriers vessels, the right to use which was expressly conceded to them by the Declaration in question. It was undoubtedly intended by that Declaration that neutrals should be able to place their goods on board belligerent vessels without as a rule incurring further risk than that of loss of market and time, and it ought to be incumbent upon a captor who destroys such goods together with his enemy's vessel to prove to the satisfaction of the prize court, and not merely to allege, that he has acted under the pressure of a real military necessity.

Hall, pp. 744, 745; Calvo, sec. 2817.

* * *

* the contents of the duty of belligerents to treat neutrals in accordance with their impartiality are so manifest that elaborate treatment is unnecessary. Such duty excludes secondly, the appropriation of neutral goods, contraband excepted, on enemy vessels.

Oppenheim, vol. 2, p. 384.

The vessel [of an enemy] will be condemned, as also will Enemy cargo. Neutral cargo will be free (except Contraband).

Holland, p. 12.

In exact accordance with the Declaration of Paris of the 4th (16th) April, 1856, the following rules are to be observed in applying these Regulations:

(3) Neutral goods, with the exception of contraband of war, are not subject to confiscation under an enemy's flag;

Russian Regulations, 1895, Article 2.

Ships of war and merchant-vessels of the enemy are subject to confiscation as prizes, as well as all articles on board, except

(2) Such as belong to the Government of a neutral Power or to its subjects, and do not constitute contraband of war.

* **

Observation. All property found in an enemy's ship is to be considered as enemy's property unless the contrary is proved.

Russian Regulations, 1895, Article 10.

Neutral goods, with the exception of contraband of war, may not be seized under the enemy's flag.

Russian Rules, 1904, sec. 5.

Exception as to armed ships.

If, however, the ship [belonging to the enemy] is equipped for fighting, the whole of the cargo shall be condemned.

Japanese Regulations, 1904, Article 40.

War and merchant vessels belonging to the enemy, including their cargo, shall be seized and confiscated. Only cargo belonging to neutral nations and to the subjects of the latter shall not be seized as far as it is not contraband of war.

Turkish Regulations, 1912, ch. 1, Art. 1.

Article 3, Declaration of Paris, is substantially identical with section 44, Austro-Hungarian Manual, 1913.

The "Nereide," 9 Cranch, 388.-The Court said: "The rule * * * 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

In the practical application of this principle, so as to form the rule, the propositions * * * that the belligerent flag communicates no hostile character to neutral property, are necessarily admitted."

Goods on board armed vessel.

The "Atalanta," 3 Wheat., 409.-This was a case of cargo belonging to a Frenchman, found on board an armed British vessel, captured by an American man-of-war.

Held that the mere fact that a neutral cargo is found on board an armed vessel of the enemy is not a ground for condemnation.

Cargo ex Mukden, Russian and Japanese Prize Cases, vol. 2, p. 12.-It was held by the Japanese Prize Court that goods captured on a Russian steamer and which had been shipped by neutral and Japanese subjects to neutral subjects in Corea should be released.